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i  I . 


UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


MANDEV1LLE   7P.OY 

ATTORNEY-AT-LAW 
x  OLE  AN,  N.  Y. 


A  HANDBOOK 

ON  THE 

TAXATION  OF  COSTS 

AS  OF  RIGHT 


IN  THE 


STATE  OF  NEW  YORK 


WITH  FORMS  FOR  VARIOUS   BILLS  OF   COSTS 


BY 

ELIAS  LOEWENKOPF,  B.  A.,  LL.  B. 

in 

OF  THE  NEW  YORK  BAR 


NEW  YORK 
BAKER,  VOORHIS  &  CO. 

1916 


COPYRIGHT,  1916, 
BY  BAKER,  VOORHIS  &  CO. 


wife 


PREFACE 

Very  often  attorneys  deprive  their  clients  and  them- 
selves of  substantial  sums  of  money  as  costs  of  an  action 
or  proceedings  to  which  they  are  justly  entitled.  There- 
fore a  short  and  concise  text  on  the  code  provisions  and 
cases  together  with  decisions  relating  to  them,  should 
be  of  great  value  and  assistance  in  taxing  costs. 

In  the  following  pages  it  is  not  intended  to  treat  the 
subject  of  costs  in  general,  but  only  the  taxation  thereof 
as  of  right,  as  it  comes  up  before  the  taxing  officer  upon 
the  entry  of  judgment  or  otherwise. 

The  treatment  of  the  subject-matter  is  such  as  to  be 
of  practical  value  to  the  attorney.  Cases  are  used  to 
illustrate  the  various  rules  and  statutes  governing  the 
taxation  of  costs.  The  text  employed,  therefore,  is  in 
most  instances  a  verbatim  statement  of  the  law  as 
enunciated  by  the  court  rendering  the  decision,  or  an 
excerpt  of  the  official  headnote  of  the  case.  It  is  for 
that  reason  authoritative,  and  attorneys  will  find  it 
unnecessary  to  refer  to  the  books  where  the  cases  are 
reported. 

Costs  in  law  actions  allowed  to  litigants  are  statutory, 
and  these  statutes  are  set  forth  in  connection  with  the 
decisions  interpreting  them. 

The  forms  are  intended  to  be  of  practical  value  and 
were  prepared  for  use  in  the  actions  specified.  The 
lists  of  itemized  costs  and  disbursements  refer  to  the 


761325 


vi  PREFACE 

individual  statutes  or  laws  authorizing  them,  and  should 
be  of  great  assistance  to  the  practitioner. 

Only  leading  cases  are  cited  upon  undisputed  ques- 
tions, but  where  there  is  a  variance  of  decisions,  the 
leading  cases  of  both  sides  are  discussed,  and  the  general 
rule  of  law  usually  followed  by  a  majority  of  the  courts 
stated. 

I  want  to  express  my  appreciation  of  the  valuable  sug- 
gestions of  Joseph  Harvis  and  of  the  able  assistance  given 
me  by  Thomas  J.  Sullivan.  Mr.  Sullivan's  long  experi- 
ence as  law  clerk  and  taxing  officer  of  the  City  Court  of 
the  City  of  New  York  has  been  of  inestimable  value 
to  me. 

This  book  is  intended  to  be  a  ready  reference  and  is, 
therefore,  concise  and  brief  without  loss  of  accuracy  or 
comprehensiveness. 

ELIAS  LOEWENKOPF, 
115  BROADWAY, 
CITY. 


CHAPTER  I 

TAXING  COSTS  IN  GENERAL 

1.  General  appearance  necessary  to  obtain  allowance  of  costs. 

2.  Statutory  costs  in  law  actions. 

3.  Actions  in  equity. 

4.  Clerk  must  follow  statute  or  order  of  the  court  in  taxing 

costs. 

5.  There  must  be  a  verdict,  etc.,  before  costs  may  be  taxed. 

6.  When  clerk's  taxation  not  disturbed. 

7.  Clerk  must  examine  bill  carefully. 

8.  Power  of  clerk  to  adjourn  taxation. 

9.  Costs  belong  to  party. 

10.  When  clerk  is  doubtful  whether  action  is  in  tort  or  contract. 

11.  Clerk  not  to  dismiss  taxation. 

12.  Dismissal  of  taxation. 

13.  Retaxation. 

(a)  Costs  reduced  on  taxation. 

14.  Review  of  taxation  by  the  court. 

15.  When  re  taxation  not  required  after  review  by  court. 

16.  Appeal  from  judgment  does  not  prevent  retaxation  on  the 

merits. 

17.  Clerk  must  tax  bills  of  several  defendants  when  presented. 

1 8.  Only  items  objected  to  are  reviewable  by  the  court. 

19.  Judgment  incomplete  without  inserting  costs  therein. 

20.  Stipulation  as  to  costs. 

21.  Two  or  more  actions  tried  as  one. 

22.  Only  one  bill  of  costs  against  several  defendants. 

23.  When  defendant  succeeds  against  one  of  several  plaintiffs. 

24.  Interest  on  verdict  forms  no  part  of  bill  of  costs. 

25.  Abatement  of  action. 

vii 


viii  CONTENTS 

CHAPTER  II 

COSTS  BEFORE  NOTICE   OF  TRIAL 

§    26.  Statutory  provisions. 

27.  Nature  of  actions  within  §  420  of  the  Code  of  Civil  Pro- 

cedure. 

28.  Not  taxable  on  demurrers. 

CHAPTER  III 

COSTS  AFTER  NOTICE   OF  TRIAL 

§    29.  Item  may  be  taxed  once  only. 

30.  When  more  than  one  charge  is  allowed. 

31.  Effect  of  return  of  notice  of  trial. 

32.  Failure  to  place  cause  on  the  calendar. 

CHAPTER  IV 

TRIAL  FEE 

§   33.  In  general. 

34.  On  dismissal  of  action. 

35.  On  discontinuance  of  action. 

36.  Cause  on  short  cause  calendar  sent  back  to  general  calendar. 

37.  Mistrial. 

38.  Disagreement  of  jury. 

39.  Withdrawal  of  juror. 

40.  Inquest. 

41.  Cause  sent  to  referee. 

(a)  Reference  to  admeasure  dower. 

(b)  Reference  cancelled. 

42.  Stipulation  that  costs  are  to  be  the  same  as  of  another  trial. 

43.  Additional  costs  for  a  trial  lasting  more  than  two  days. 

44.  What  constitutes  period  of  trial. 


CONTENTS  ix 

CHAPTER  V 

TERM   FEES 

45.  Statutory  provisions. 

46.  Cause  must  be  necessarily  on  the  calendar. 

47.  Stay  of  proceedings. 

48.  Term  fees  allowed  although  notice  was  filed  by  adversary. 

49.  Fee  for  one  term  only  in  the  City  Court. 

50.  No  costs  allowed  for  term  at  which  cause  is  tried  or  dis- 

posed of. 

51.  Effect  of  amendment  of  pleadings  on  term  fees. 

52.  Adjournment  to  other  terms  on  consent. 

53.  No  term  fee  allowed  in  Appellate  Term  of  the  Supreme 

Court. 

54.  Term  fees  in  other  appellate  courts. 

CHAPTER  VI 

DISMISSAL   OF  COMPLAINT 

55.  Costs  are  statutory. 

56.  Trial  fee  allowed. 

57.  Costs  to  each  of  several  defendants. 

58.  Dismissal  as  to  one  of  several  defendants. 

CHAPTER  VH 

DISCONTINUANCE   OF  ACTION 

59.  Costs  to  date  are  statutory. 

60.  Costs  before  and  after  notice  of  trial  allowed. 

61.  No  trial  fee  nor  disbursements  allowed. 

62.  When  trial  fee  may  be  allowed. 

63.  When  no  term  fee  allowed. 

64.  When  allowed  without  costs. 

65.  Consolidation  of  actions. 

66.  No  judgment  for  costs  to  be  entered  on  discontinuance  of 

action. 


x  CONTENTS 

CHAPTER  VIII 

DEMURRERS   AND   INTERLOCUTORY   JUDGMENTS 

§    67.  Statutory  provisions. 

68.  When  entitled  to  allowance  of  costs. 

69.  When  nominal  damages  are  demanded. 

70.  As  a  contested  motion. 

71.  As  a  trial  of  an  issue  of  law. 

72.  When  demurrer  is  sustained  or  overruled  in  whole. 

73.  Demurrer  to  one  of  several  defenses  or  counterclaims. 

74.  On  entry  of  interlocutory  judgment. 

75.  Disbursements. 

76.  Full  bill  allowed  on  failure  to  plead  over. 

77.  Costs  of  interlocutory  judgment  contained  in  final  judg- 

ment. 

CHAPTER  IX 

MOTIONS   AND   SPECIAL   PROCEEDINGS 

§    78.  Motion  costs  allowed  in  the  discretion  of  the  court. 

79.  When  "with  costs"  does  not  include  disbursements. 

80.  Costs  in  special  proceedings. 

81.  Must  be  a  final  decree  or  order  in  a  special  proceedings. 

82.  When  §  3240  is  applicable. 

CHAPTER  X 

COST    FOR    PROCEEDINGS    AFTER    THE   GRANTING    OF    AND    BEFORE 
NEW  TRIAL 

§    83.  Statutory  provisions. 

84.  Where  verdict  is  set  aside  and  new  trial  ordered. 

85.  Verdict  set  aside  because  of  misconduct  of  jury. 

86.  Reversal  of  judgment  by  appellate  court. 

87.  On  opening  an  inquest  no  costs  allowed. 

88.  Nor  after  disagreement  of  jury. 

89.  Restoring  cause  to  day  calendar. 

90.  Item  taxable  more  than  once. 


CONTENTS  xi 


§    91.  Costs  allowed  are  the  same  as  on  an  appeal. 

92.  Motion  is  made  on  a  case. 

93.  What  a  case  consists  of.  . 

94.  Entitled  to  costs  of  motion  in  addition  to  costs  on  appeal 

from  judgment. 

95.  Appeal  costs  follow  as  a  matter  of  course. 

CHAPTER  XII 

TAXATION  OF   COSTS  PREVIOUSLY  PAID  AS  TERMS 

•§    96.  Costs  paid  as  terms  on  amendment  of  pleadings  cannot  be 
taxed  again. 

97.  Items  of  costs  paid  as  terms  allowed  to  be  taxed  again  by 

successful  party. 

98.  Where  terms  allowed  is  an  amount  equal  to  costs. 

99.  Payment  of  costs  on  opening  default. 

100.  Costs  accrued  before  amendment  of  pleadings  not  taxable 
on  final  judgment. 

CHAPTER  XIII 

APPEALS 

§  101.  Statutory  provisions.    §  3251,  subds.  4  and  5. 

102.  Case  on  appeal  must  be  perfected. 

103.  More  than  one  appeal  in  one  case. 

104.  Simultaneous  appeal  from  judgment  and  order. 

105.  When  costs  of  trial  need  not  be  retaxed. 

106.  Costs  in  all  courts  on  entry  of  final  judgment. 

107.  Amount  of  recovery  less  than  $50. 

1 08.  Dismissal  of  appeal. 

109.  Motion  costs  of  appeal  need  not  be  taxed. 

1 10.  Costs  in  judgment  of  affirmance. 

in.  Costs  of  appeal  to  be  set  off  on  entry  of  final  judgment. 
112.  An  appearance  in  the  appellate  court  subjects  a  party  to 
costs  therein. 


xii  CONTENTS 

\ 

§  1 13.  Objection  to  appeal  costs. 

114.  Costs  on  appeal  from  an  interlocutory  judgment  of  the 

City  Court. 

115.  Interlocutory  judgment  reversed. 

116.  Interlocutory  judgment  affirmed. 

117.  Demurrer  heard  as  a  contested  motion. 

1 1 8.  Only  one  bill  against  several  respondents. 
IIQ.  Motion  for  new  trial  made  at  close  of  trial. 

1 20.  Appeal  from  order  granting  new  trial  on  newly  discovered 

evidence. 

121.  Appeal  from  order. 

122.  Costs  of  appeal  from  order  same  as  motion  costs. 

123.  Costs  include  disbursements. 

124.  Costs  on  reargument  of  appeal. 

125.  Submission  of  papers  same  as  argument. 

126.  Reargument  on  disqualification  of  judge. 

127.  Motion  costs  granted  in  appellate  court. 

128.  Costs  of  reargument  when  same  is  referred. 

1 29.  Costs  as  awarded  in  Court  of  Appeals. 

130.  "Costs"  as  used  in  undertakings. 

131.  Costs  for  making  and  serving  a  case  in  Court  of  Appeals  not 

taxable. 

132.  Costs  for  case  on  appeal  to  be  taxed  by  appellant  only. 

133.  Costs  on  dismissal  of  appeal. 

134.  Costs  in  certiorari  proceedings. 

135.  Costs  to  abide  the  event. 

136.  Construed  to  include  all  costs  in  the  action. 

137.  Construed  as  costs  in  appellate  court  only. 

138.  Party  finally  successful  entitled  to  tax  them. 
1383.  When  appeal  costs  may  be  taxed. 

CHAPTER  XIV 

ACTIONS   RELATING  TO   REAL  PROPERTY 

§  139.  Right  to  costs  not  limited  to  amount  of  recovery. 

140.  Title  to  property  must  be  in  question. 

141.  Plaintiff  must  obtain  an  affirmative  judgment. 


CONTENTS  xiii 

CHAPTER  XV 

ACTIONS   FOR  ASSAULT,   SLANDER,   ETC. 

§  142.  Statutory  provisions. 

CHAPTER  XVI 

ACTIONS  IN  REPLEVIN 

§  143.  Statutory  provisions. 

144.  Costs  dependent  on  amount  of  recovery. 

145.  Allowance  of  costs. 

146.  Costs  disallowed. 

147.  When  recovery  is  within  §  3228,  subdivision  5,  of  the  Code. 

CHAPTER  XVII 

ACTIONS   TO   RECOVER  SUM   OF  MONEY  ONLY 

§  148.  Recovery  of  $50  or  more. 
149.  Recovery  less  than  $50. 

CHAPTER  XVIII 

ALLOWANCE  OF  COSTS  WHEN  RECOVERY  COMES  WITHIN  §  3228,  SUB- 
DIVISION  5,   OF  THE  CODE 

§  150.  Statutory  provisions. 

151.  Allowance  of  costs  dependent  upon  place  of  service. 

152.  Meaning  of  "triable." 

153.  When  amount  of  recovery  brings  cause  within  section. 

154.  No  allowance  on  voluntary  appearance  of  defendant. 

155.  When  costs  allowed  on  voluntary  appearance  of  defendant. 

156.  Subdivision  does  not  apply  to  appeal  costs. 

157.  Effect  of  subdivisions  4  and  5  of  §  3228  and  §  3229. 


xiv  CONTENTS 

CHAPTER  XIX 

DEFENDANT   ENTITLED  TO  COSTS 

§  158.  Statutory  provisions;  §  3229. 

159.  When  one  of  several  defendants  obtains  judgment. 

1 60.  Where  attorney  for  defendant  is  public  official. 

CHAPTER  XX 

PARTIAL  RECOVERY  BY  BOTH  PARTIES  IN  SUIT  OF  SEVERAL  CAUSES 
OF  ACTION 

§  161.  Statutory  provisions;  §  3234. 

162.  Allowance  of  costs  to  both  plaintiff  and  defendant. 

163.  When  defendant  not  entitled  to  costs. 

164.  When  counterclaim  is  interposed  by  defendant,  prevailing 

party  entitled  to  costs. 

CHAPTER  XXI 

DRAWING   INTERROGATORIES   AND  TAKING   DEPOSITIONS 

§  165.  Statutory  provisions  as  to  drawing  interrogatories. 

1 66.  Only  one  fee  of  ten  dollars  taxable. 

167.  Where  more  than  one  fee  may  be  charged. 

1 68.  Statutory  provisions  as  to  taking  depositions. 

169.  Fees  are  statutory  and  follow  issuance  of  commission. 

170.  Deposition  by  stipulation. 

171.  Fee  follows  general  costs. 

172.  One  fee  allowable  where  one  order  is  issued. 

173.  Where  several  parties  obtain  orders. 

174.  Allowance  of  costs  although  examination  is  waived. 

175.  Costs  allowed  although  order  was  obtained  by  adverse 

party. 

176.  No  allowance  of  costs  where  officer  other  than  commis- 

sioner takes  deposition. 


CONTENTS  xv 

CHAPTER  XXII 

ADDITIONAL  ALLOWANCE  TO  PLAINTIFF  ON  FORECLOSURE,   ETC. 

(177.  Statutory  provisions. 

178.  How  value  of  property  is  fixed. 

179.  Limitation  of  allowance  to  two  thousand  dollars  defined. 

CHAPTER  XXIII 

WHEN  DEFENDANT   ENTITLED   TO   INCREASED   COSTS 

!  1 80.  Statutory  provisions. 

181.  Increased  costs  allowed  in  actions  against  sheriff. 

182.  Not  allowed  in  actions  on  bond  of  officer. 

183.  Writ  of  certiorari  not  within  the  section. 

184.  Allowance  of  increased  costs  includes  costs  on  appeal. 

CHAPTER  XXIV 

OFFER   OF  JUDGMENT 

i  185.  Statutory  provisions. 

1 86.  Plaintiff's  acceptance  of  offer. 
i86a.  When  offer  must  be  made. 
i86b.  Withdrawal  of  offer. 

187.  Recovery  by  plaintiff  in  excess  of  offer. 
i87a.  When  counterclaim  is  interposed. 
i87b.  On  foreclosure  of  mechanic's  lien. 

1 88.  When  defendant  entitled  to  costs. 

189.  When  recovery  is  reduced  so  as  to  be  less  than  the  offer. 

190.  Confession  of  judgment. 

CHAPTER  XXV 

REFEREE'S  FEES 

1 191.  Statutory  provisions. 

192.  Without  stipulation  only  legal  fees  are  taxable. 

193.  Effect  of  stipulation  on  fees. 


xvi  CONTENTS 

§  194.  Several  actions  tried  together. 

195.  Entitled  to  fees  for  every  day  of  attendance. 

196.  Fee  allowed  for  preparation  of  report. 

197.  Where  no  fee  will  be  allowed. 

198.  Attorneys  of  parties  may  enter  into  stipulation. 
109.  Report  of  referee  must  be  filed  as  prescribed. 
200.  Misconduct  of  referee. 

CHAPTER  XXVI 

EXECUTORS   AND   ADMINISTRATORS 

§  201.  Statutory  provisions. 

202.  Entitled  to  a  complete  trial. 

203.  Unreasonably  resisting  claim. 

204.  Certificate  of  judge  or  referee  must  be  furnished. 

205.  When  taxation  against  an  executor  or  administrator  allowed. 

206.  When  executors  and  administrators  are  liable  for  appeal 

costs. 
2o6a.  Exemption  from  payment  of  costs  limited. 

CHAPTER  XXVII 

FORMA   PAUPERIS 

§  207.  Statutory  provisions. 

208.  Order  must  be  presented  on  taxation  or  served  on  adverse 

party. 

209.  When  costs  may  be  taxed. 

210.  Not  relieved  from  payment  of  costs  accured  prior  to  grant- 

ing of  order. 

211.  In  appellate  court. 

212.  Costs  of  an  unsuccessful  appeal  taxable. 

213.  When  recovery  is  less  than  $50. 

CHAPTER  XXVIII 

DISBURSEMENTS 

§214.  Statutory  provisions. 
215.  Authority  of  taxing  officer  to  tax  disbursements. 


CONTENTS  xvii 

216.  Affidavit  as  to   disbursements   must   accompany  bill   of 

costs. 

217.  An  award  of  costs  includes  disbursements. 

218.  Clerk's  taxation  of  disbursements  not  disturbed. 

219.  Service  of  summons. 

(a)  Additional  costs  for  additional  defendants. 

(b)  Effect  of  voluntary  appearance. 

220.  Disbursements  for  service  of  subpoena  not  allowed. 

221.  Premiums  paid  on  bond  or  undertaking  not  taxable. 

222.  Disbursements  for  official  searches  allowed. 

223.  Stenographer's  fees. 

224.  Stenographer's  minutes  to  prepare  amendments. 

225.  Minutes  to  be  used  on  another  trial. 

226.  Disbursements  for  minutes  allowed   when   procured   by 

direction  of  court. 

227.  Stipulation  as  to  payment  of  stenographer's  fees. 

228.  Stenographer's  fees  on  a  reference. 

229.  Excess  rate  nor  transcript  of  summation  allowable. 

230.  Printing  may  be  allowed  on  appeal  from  order. 

231.  Proof  of  expense  incurred  to  be  submitted. 

232.  Appeal  of  several  defendants  on  same  papers. 

233.  Same  document  used  in  several  actions. 

234.  No  allowance  to  be  made  for  service  of  papers  on  attorney. 
235-  Jury  fees. 

CHAPTER  XXIX 

DISBURSEMENTS   FOR  ATTENDANCE   OF  WITNESSES 

236.  Statutory  provisions. 

237.  Affidavit  must  accompany  the  bill  of  costs  for  attendance 

of  witnesses. 

238.  Stipulation  by  parties  as  to  fees. 

239.  Witness  subpoenaed  but  not  called  to  testify. 

240.  Witness  fees  allowed  for 

(a)  Adverse  party. 

(b)  Stockholder  of  corporation. 

(c)  Officer  of  corporation. 


xviii  CONTENTS 

§  241.  Witness  fees  disallowed  for 

(a)  Party  in  the  action. 

(b)  Co-defendant. 

(c)  Attorney  of  record. 

242.  Expert  testimony. 

243.  Allowance  of  mileage,  affidavit  of  mileage  necessary. 

244.  Mileage  allowed  one  way  once  only. 

245.  Mileage  computed  from  place  of  actual  residence. 

246.  Mileage  allowed  for  foreign  witness. 

247.  Fees  must  appear  to  have  been  paid  or  will  be  paid. 

248.  Testimony  taken  at  residence  of  witness. 

CHAPTER  XXX 

249.  Disbursements  not  included  in  motion  costs. 

CHAPTER  XXXI 

COLLECTION  OF  COSTS 

§  250.  Execution  against  property. 

251.  Supplementary  proceeding. 

252.  Motion  costs. 

253.  Contempt  proceedings. 

254.  Matrimonial  actions. 

255.  Attorney's  lien  for  costs. 

256.  Execution  against  the  person. 

257.  Mandamus. 

ADDENDA 

Sheriff's  fees page  146 

Bronx  County,  Clerk's  Fees page  148 

Kings  County,  Clerk's  Fees page  149 

Costs  itemized page  1 50 

Disbursements  itemized page  151 

Forms  of  bills  of  Costs page  1 56 


INDEX  TO  CASES  CITED 

References  are  to  sections 
A 

Adams  v.  Massey,  51  Misc.  230 137 

Agricultural  Ins.  Co.  v.  Bean,  45  How.  Pr.  444 8,  237 

Agar  v.  Tibbets,  56  Hun,  272 64 

Ahrens  v.  Coleman,  66  Misc.  569 244 

Allen  v.  Wells  Fargo  Co.,  95  N.  Y.  S.  597 19 

Alexander  v.  Hard,  42  How.  Pr.  Rep.  131 140 

Allen  v.  Glass,  60  Hun,  546 186 

Alexander  v.  Henry,  L.  J.  Feb.  24,  '15 24ia 

Allison  v.  Board  of  Education,  26  A.  D.  208 257 

Andrews  v.  Schnitzler,  48  Sup.  Court  Rep.  173 48 

Andrew  v.  Cross,  1 7  Abb.  N.  C.  92 99 

Anderson  ».  De  Braekeleer  &  Co.,  25  Misc.  343 228 

Audenried  v.  Wilson,  2  N.  Y.  Weekly  Digest,  108 21,  42 

Auerbach  v.  Ramor,  L.  J.  Feb.  20,  '15 164 

Averil  v.  Patterson,  10  N.  Y.  500 64 

Anderson  v.  A.  E.  Norton,  Inc.,  158  N.  Y.  S.  152 66 

B 

Bailey  v.  Stone,  41  How  Pr.  346 S 

Babcock  v.  Smith,  19  N.  Y.  S.  817 256 

Barry  v.  Third  Ave.  R.  R.  Co.,  87  A.  D.  543 9 

Basso  v.  Basso,  19  Abb.  N.  C.  173 73 

Bannerman  v.  Quackenbush,  17  Abb.  N.  C.  103 188 

Ball  v.  Doherty,  144  A.  D.  277 189 

Bankers  Money  Order  Ass.  v.  Nachod  et  al.,  125  A.  D.  373  .  .    252 

Benner  v.  Benner,  12  N.  Y.  S.  472 68 

Berrent  v.  Simpson,  61  Misc.  611 106,  137 

Beardsley  Scythe  Co.  v.  Foster,  36  N.  Y.  561 no 

Benjamin  v.  Brownstein,  79  Misc.  84 121 

Belt  v.  Am.  Central  Ins.  Co.,  33  A.  D.  239 137 

xix 


xx  INDEX  TO  CASES  CITED 

References  are  to  sections 

Beil  v.  Supreme  Council,  42  A.  D.  168 188 

Benjamin  r.  VerNooy,  168  N.  Y.  578 202,  206 

Bernard  v.  Cowen,  82  Misc.  384 252 

Bick  r.  Reese,  52  Hun,  125 221 

Block  t1.  Linsley,  40  Misc.  184 39,  89 

Bley  v.  Village  of  Hamburg,  84  A.  D.  23 82 

Bloomingdale  v.  Steubing,  35  N.  Y.  S.  1074 140 

Blashfield  v.  Blashfield,  41  Hun,  249 162 

Blank  r.  Spies,  62  N.  Y.  S.  1039 195 

Boissevain  v.  Pope,  L.  J.  Aug.  28,  '09 • 41 

Bowen  i1.  Sweeney,  66  Hun,  42 46 

Bowen  r.  Holdredge,  134  A.  D.  855 141 

Booth  v.  H.  S.  Kerbaugh,  143  N.  Y.  S.  624 244 

Browning  v .  Brokaw,  1 14  A.  D.  104 36 

Brennan  v.  Joline,  70  Misc.  537 95,  120,  121,  227,  230 

Brassington  v.  Rohrs,  3  Misc.  262 103 

Broadway  Savings  Inst.  v.  Town  of  Pelham,  148  N.  Y.  737. .  137 

Bruck  v.  Lambeck,  63  Misc.  185 159 

Browning  v.  Lake  Erie  &  W.  R.  R.  Co.,  64  Hun,  513 162 

Briggs  v.  Allen,  4  Hill,  538 163 

Brick  v.  Fowler,  61  How.  Pr.  153 193 

Brush  v.  Kelsey,  47  A.  D.  270 195 

Brown  v.  Windmiller,  14  Abb.  Pr.  N.  S.  359 196 

Brown  v.  Sears,  23  Misc.  559 197,  227,  228 

Brown  r.  Brockett,  55  How.  Pr.  Rep.  32 256 

Brown  r.  Mapelson,  2  City  Court  Rep.  404 219 

Burrows  v.  Butler,  38  Hun,  121 14 

Buell  v.  Gray,  13  How.  Pr.  31 22 

Bullard  v.  Pearsall,  46  How.  Pr.  530 104 

Burnel  v.  Coles,  26  Misc.  378 123 

Burgdorf  v.  Brooklyn,  Queens  Co.,  &  S.  R.  Co.,  130  A.  D.  253  152 

Burns  r.  D.,  L.  &  W.  R.  R.  Co.,  63  Hun,  19 163 

Burns  r.  D.,  L.  &  W.  R.  R.  Co.,  135  N.  Y.  268     166, 169,  171,  172, 

176,  215 

Butterly  v.  Deering,  69  Misc.  75 196 

Burt  v.  Oneida  Community,  59  Hun,  234 238 

Burkle  r.  Luce,  i  N.  Y.  239 184 


INDEX  TO  CASES  CITED  xxi 

References  are  to  sections 
C 

Cassidy  v.  McFarland,  139  N.  .Y.  208.  .  .4,  53,  79,  122,  230,  249 

Cassidy  v.  McFarland,  2  Misc.  189 \ . . .   123 

Carter  v.  Builders  Const.  Co.,  134  A.  D.  553 4 

Candee  v.  Ogilvie,  5  Duer,  658 46 

Cassavoy  v.  Pattison,  101  A.  D.  130 77,  252 

Capozzi  v.  Bulkly,  156  A.  D.  55 84,  106 

Cahil  v.  Mayor,  50  A.  D.  276 96 

Campbell  v.  Hallihan,  46  Misc.  409 114,  115 

Case  v.  Price,  17  How.  Pr.  Rep.  348 2193, 

Catlin  v.  Adirondack  Co.,  20  Hun,  19 256 

Cheever  v.  Pittsburg  S.  &  L.  E.  R.  Co.,  26  N.  Y.  S.  829 24oc 

City  Tax  Lien  Co.  v.  Murray,  91  Misc.  119 4ia 

Claflin  v.  Robinson,  6  N.  Y.  S.  430 59 

Clegg  v.  Aiken,  n  State  Rep.  354 215 

Clinton  v.  South  Shore  M.  G.  &  F.  Co.,  61  Misc.  339 252 

Collomb  v .  Caldwell,  5  How.  Pr.  336 14 

Coddington  v.  Scott,  21  N.  Y.  S.  473 22 

Cole  v.  Lowery,  23  N.  Y.  S.  674 34,  56 

Comstock  v.  Halleck,  4  Sandford,  671 48 

Cohn  v.  Huson,  3  How.  Pr.  N.  S.  130 97 

Cooley  v.  Cummings,  4  N.  Y.  S.  530 139 

Collins  v.  Adams,  4  N.  Y.  S.  217 140 

Coatsworth  v.  Ray,  52  N.  Y.  S.  498 189 

Cornwell  v.  Sheldon,  134  A.  D.  58 204 

Corning  v.  Radley,  25  Misc.  318 i86a 

Coyle  v.  Third  Ave.  R.  R.  Co.,  19  Misc.  345 209 

Crotty  v.  De  Dion  Bouton  M.  Co.,  102  A.  D.  405 14 

Crossley  v.  Cobb,  37  Hun,  271 14 

Crasto  v.  White,  52  Hun,  473 76 

Crossley  v.  Cobb,  42  Hun,  166 163 

Grain  v.  Holcomb,  2  Hilton,  269 164 

Cusick  v.  Adams,  47  Hun,  455 119 

D 

Dame  v.  Maynard,  139  A.  D.  385 33,  4ia 

Davis  v.  Grand  Rapids  Fire  Ins.  Co.,  5  A.  D.  36 92 


xxii  INDEX  TO  CASES  CITED 

References  are  to  sections 

Dayton  v.  Parke,  67  Hun,  137 187 

Davids  v.  Brooklyn  Heights  R.  Co.,  92  N.  Y.  S.  220 256 

Davids  v.  Brooklyn  Heights  R.  Co.",  104  A.  D.  23 256 

Deyo  v.  Morss,  21  Misc.  497 46,  52 

Delcomyn  v.  Chamberlain,  48  How.  Pr.  409 223 

Dodd  v.  Curry,  4  How.  Pr.  1 23 34 

Dovale  v.  Ackerman,  24  Abb.  N.  C.  214 97 

Dobeck  v.  Austro-American  S.  S.  Co.,   83  Misc.  641 137 

Doremus  v.  Crosby,  66  Hun.  125 178 

Douglas  v.  Smith,  19  N.  Y.  S.  630 199 

Dowd  v.  Smith,  8  Misc.  619 i87a 

Duprey  v.  Phoenix,  i  Abb.  N.  C.  133,  note 62 

Dunphy  v.  Callahan,  126  A.  D   n 205 

Dunn  v.  Arkenburg,  62  N.  Y.  S.  861 2o6a 

£ 

Egan  v.  Interborough  Rapid  Tr.  Co.,  L.  J.  June  12,  '15 44 

Ellsworth  v.  Gooding,  8  How.  Pr.  i 38 

Elliot  v.  Luengene,  19  Misc.  428 138 

Elwin  v.  Routh,  i  Civ.  Pro.  Rep.  131 209 

Ennis  v.  Wilder,  14  Weekly  Dig.  211 54 

Enright  v.  Shalvey,  i  City  Ct.  Rep.  58 181 

Equitable  L.  Ass.  Soc.  v.  Hughes,  125  N.  Y.  106 222,  223 

Evans  v.  Silberman,  7  A.  D.  139 14,  63,  165 

Evans  v.  Ferguson,  10  Civ.  Pro.  Rep.  57 44 

Everson  v.  Gehrman,  10  How.  Pr.  301 188 

F 

Farley  v.  16  Bottles  of  Champagne,  153  A.  D.  502 82 

Feiber  v.  Home  Silk  Mills,  L.  J.  Nov.  10,  '14 7,  53,  132 

Fink  v.  Stachelberg,  86  N.  Y.  S.  20 36 

Finkel  v.  Kohn,  53  N.  Y.  S.  694 196 

Finkenmaur  v.  Dempsey,  8  Civ.  Pro.  Rep.  418 256 

First  N't'l  Bank  of  M.  v.  Fourth  N't'l  Bank  of  N.  Y.,  84 

N.  Y.  469. . .                                         137,  138 

Flor  v.  Flor,  73  A.  D.  262 254 


INDEX  TO  CASES  CITED  xxiii 

References  are  to  sections 

Fordyce  v.  Wolff,  L.  J.  May  7,  '15 13 

Fourteenth  Street  Bank  v.  Strauss,  54  Misc.  588 18 

Fox  v.  Davidson,  40  A.  D.  620 100 

Forstman  v.  Schulting,  42  Hun,  643 253 

Franey  v.  Smith,  126  N.  Y.  658 136 

Friedman  v.  Borchard,  161  A.  D.  672 222 

Fulton  v.  Krull,  151  A.  D.  143 137 

Fuller  Buggy  Co.  v.  Waldron,  49  Misc.  278 234,  24ib 

G 

Garret  v.  Wood,  61  A.  D.  293,  294 72,  73,  74,  76 

Garrison  v.  Garrison,  67  How.  Pr.  271 '. .  . .  188 

GalHnger  v.  Engelhardt,  26  Misc.  49 130 

Gaetjens  v.  City  of  New  York,  145  A.  D.  640 149 

Gilmartin  v.  Smith,  6  N.  Y.  Sup.  Ct.  684 13 

Gilroy  v.  Badger,  58  N.  Y.  S.  1 106 36 

Girberkian  v.  Costikyan,  126  A.  D.  813 153 

Gilbert  v.  Deshon,  16  N.  Y.  S.  36 192 

Gilmour  v.  Stettler,  58  Misc.  361 225 

Goodkind  v.  Met.  St.  R.  Co.,  L.  J.  June  n,  '04 44 

G.  P.  Putnam's  Sons  v.  Picket,  152  A.  D.  814 151 

Grant  v.  Pratt  &  L.,  no  A.  D.  149 97 

Greenwald  et  al.  v.  Weir,  131  A.  D.  568 106 

Gregory  v.  Cryder,  10  Abb.  Pr.  N.  S.  289 199 

Guckenheimer  v.  Angevine,  16  Hun,  453 124 

Guttroff  v.  Wallach,  3  Misc.  136 i86a 

H 

Hackett  v.  Edwards,  22  Misc.  659 i86b 

Hagar  v.  Danforth,  8  How.  Pr.  448 46 

Hakonson  v.  Met.  St.  R.  Co.,  40  Misc.  182 . 247 

Hallet  v.  Hallet,  10  Misc.  304 64 

Hall  v.  Hodskins,  30  How.  Pr.  15 139 

Hall  v.  Dusenbury,  38  Hun,  125 182 

Hammer  v.  Schreiber,  L.  J.  Dec.  10,  '12 31 

Hamilton  v.  Butler,  19  Abb.  Pr.  446 38 


xxiv  INDEX  TO  CASES  CITED 

References  are  to  sections 

Hamilton  v.  Wentworth,  27  N.  Y.  Sup.  Ct.  Rep.  654 88 

Hanna  v.  Dexter,  15  Abb.  135 186 

Harris  v.  Wiener,  L.  J.  Nov.  20,  '15 99 

Hauselt  v.  Godfrey,  3  Civ.  Pro.  Rep.  116 21 

Hausauer  v.  Machawich,  54  A.  D.  23 145 

Hascall  v.  King,  165  N.  Y.  288 129 

Hawley  v.  Davis,  5  Hun,  642 40,  186 

Havemeyer  v.  Havemeyer,  48  Sup.  Ct.  Rep.  104 97 

Hayden  v.  Hayden,  8  A.  D.  547 212 

Hewitt  v.  City  Mills,  136  N.  Y.  211,  p.  213 i3a 

Herzfeld  v .  Reinach,  57  N.  Y.  S.  669 51 

Herman  v.  Gervin,  8  A.  D.  418 146 

Heller  v.  Katz,  62  Misc.  266 188 

Herzberg  v.  Elvidge,  80  Misc.  290 200,  223 

Herrmann  v.  Herrmann,  88  A.  D.  77 225 

Hill  v.  Muller,  53  Misc.  262 28,  74,  113,  116,  127,  219 

Himberg  v.  Rogers,  40  Misc.  190 59 

Hicox  v.  New  Yorker  Staats  Zeitung,  23  Civ.  Pro.  Rep.  87. .  .     65 

Hill  v.  McMahon,  81  A.  D.  324 141 

Hill  v.  Kann,  50  Misc.  360 153 

Hirshspring  v .  Boe,  20  Abb.  N.  C.  402 186,  188 

H.  G.  Vogel  v.  Reinhardt,  L.  J.  Dec.  i,  '15 86 

H.  G.  Vogel  i).  Reinhardt,  89  Misc.  608 97 

H.  G.  Vogel  v.  Wolff,  160  A.  D.  831 117 

Hoepfner  v.  Barzlay,  L.  J.  Sept.  30,  '02 32 

Howell  v.  Van  Siclen,  8  Hun,  524 137 

Hoornbeck  v.  Baker,  L.  J.  Feb.  7,  '14 147 

Hewlett  v .  Brown,  7  Abb.  Pr.  74 24oa 

Hudson  v.  Erie  R.  R.  Co.,  57  A.  D.  98.  .  29,  43,  85,  88,  225,  235 

Hubbard  v.  Heinze,  145  A.  D.  828 154 

Hyde  v.  Anderson,  112  A.  D.  76 66-252 

I 

Inderlied  v.  Whaley,  17  Civ.  Pro.  Rep.  377 237 

Isaacs  v.  Kobre,  L.  J.  March  6,  '14 51 


INDEX  TO  CASES  CITED  xxv 
References  are  to  sections 

J 

Jacobs  v.  Feinstein,  133  A.  D.  416 57 

Jacob  v.  White,  164  A.  D.  in 155 

Jermain  v.  Lake  Shore  &  M.  S.  R.  Co.,  31  Hun,  559 233 

Johnson  v.  Fellows,  6  Hill,  353 162 

Johnson  v.  N.  Y.  Elevated  R.  Co.,  10  Misc.  136 226 

Johnson  v.  Sager,  10  How.  Pr.  552 187 

Johnston  v.  Catlin,  57  N.  Y.  652 .  . .  . 188 

Jones  v.  Emery,  i  Civ.  Pro.  Rep.  338 2 

K 

Kantrowitz  v.  Kulle,  13  Civ.  Pro.  Rep.  74 188 

Kantz  v.  Vandenburgh,  28  N.  Y.  S.  1046 i87a 

Kane  v.  Met.  El.  R.  R.  Co.,  7  N.  Y.  S.  653 231 

Kane  v.  Rose,  87  A.  D.  101 253 

Kaplan  v.  Olsen,  118  N.  Y.  S.  634 17 

Keiser  v.  Schreier,  L.  J.  Nov.  3,  1916 page  147 

Kesner  v.  Greenfield,  L.  J.  March  31,  '15 58 

Kennedy  v.  Jarvis,  126  A.  D.  551 24ic 

Keyes  v.  Lestershire  Heights  Ry  Co.,  158  N.  Y.  S.  617 ...  70,  117 

Kiernan  v.  Agricultural  Ins.  Co.,  3  A.  D.  26 i88b 

Knowlton  v.  Pierce,  41  How.  Pr.  361 23 

Kniering  v.  Lennon,  3  Misc.  247 73 

Knapp  v.  Murphy,  20  A.  D.  83 256 

Koch  v.  Koch,  i  City  Ct.  Rep.  255 21 

Kohn  v.  Man.  R.  Co.,  8  Misc.  421 239 

Krause  v.  Averill,  66  How.  Pr.  Rep.  97 i 

Kramer  v.  Wien,  L.  J.  Feb.  20,  '15 27 

Kramer  v.  Barth,  79  Misc.  80 70 

Kummer  v.  Christopher  &  T.  St.  Ry.  Co.,  33  N.  Y.  S.  581 . 20,  88 

L 

Lange  v.  Schile,  in  A.  D.  613 10 

LaRosa  v.  Wilner,  54  Misc.  574 18,  156 

LaFarge  v.  Chilson,  3  Sandf.  752 188 

Lansing  v.  Lansing,  41  How.  Pr.  248 254 


xxvi  INDEX  TO  CASES  CITED 

References  are  to  sections 

Levitas  v.  Hart,  117  N.  Y.  S.  1027 14 

Levine  v .  Klein,  66  Misc.  571 90 

Lennon  v.  Mclntosh,  19  Abb.  N.  C.  175 98 

Lennon  v.  Chang,  54  Misc.  298 107,  149 

Leyden  v.  Brooklyn  H.  R.  R.  Co.,  122  A.  D.  383 153 

Lee  Injector  M'f'g  Co.  v.  Penberthy  Inj.  Co.,  109  Fed.  Rep. 

964 221 

Lindbald  v.  Lynde,  81  A.  D.  603,  p.  605 100 

Littauer  v.  Stern,  177  N.  Y.  233 I 

L.  I.  Contracting  Co.  v.  The  City  of  N.  Y.,  142  A.  D.  i 224 

Ljunquist  v.  Hartmetz,  54  Misc.  87 58,  159 

Loring  v.  Morrison,  25  A.  D.  139 t 186 

Louis  v.  Empire  State  Ins.  Co.,  75  Hun,  364 28,  71,  75 

Locklin  v.  Casler,  50  How.  Pr.  43 139 

Lockwood  v.  Waldorf,  36  N.  Y.  S.  199 146 

Louisville  Lumber  Co.  v.  Smith,  154  A.  D.  386 221 

Losaw  v.  Smith,  109  A.  D.  754 256 

Lyman  v.  Young  Men's  Cosm.  Club,  38  A.  D.  220 14 

Lyons  v.  Murat,  54  How.  Pr.  Rep.  368 210 

M 

Mahon  v.  Mahon,  64  A.  D.  262 108 

Marsh  v,  Graham,  19  Misc.  263 72 

Marx  v.  Gross,  22  N.  Y.  S.  387 96 

Margulies  v.  Damrosch,  51  N.  Y.  S.  833 109 

Malcolm  v.  Hamill,  65  How.  Pr.  506 125 

Mangin  v.  Dinsmore.  47  How.  Pr.  n 186 

Mark  v.  Buffalo,  87  N.  Y.  184 193,  198,  238,  242 

Marshall  v.  Meech,  51  N.  Y.  140 255 

Matter  of  Babcock,  86  A.  D.  563 79,  81,  82,  123,  217 

Matter  of  Bensel,  143  A.  D.  962 81 

Matter  of  Brady,  145  A.  D.  49 82 

Matter  of  Brooklyn  Union  El.  R.  Co.,  176  N.  Y.  213 82 

Matter  of  Bender,  86  Hun,  570 249 

Matter  of  Hood,  30  Hun,  472 136 

Matter  of  Hess,  48  Hun,  586 257 

Matter  of  Kin,  139  A.  D.  766 118 


INDEX  TO  CASES  CITED  xxvii 

References  are  to  sections 

Matter  of  Molinari,  82  Misc.  663 82 

Matter  of  N.  Y.,  L.  &  W.  R.  Co.,  26  Hun,  592 82 

Matter  of  Peterson,  94  A.  D.  143 79 

Matter  of  Perry,  131  A.  D.  284 81 

Matter  of  Smith,  161  A.  D.  638,  p.  642 24 

Matter  of  School  Street  Nos.  i  &  2,  162  A.  D.  158 82 

Matter  of  Simmons,  71  Misc.  152 179 

Matter  of  Stoddard,  128  A.  D.  759 251 

Matter  of  Van  Dusen,  132  A.  D.  592 79,  122 

Matter  of  Wray  Drug  Co.,  93  A.  D.  456 133 

Matter  of  Water  Commissioners,  104  N.  Y.  677 137 

Matter  of  Young,  66  Misc.  216 82 

Mead  v.  Tuckerton,  105  N.  Y.  557 193,  195 

Megrue  v.  Megrue,  160  A.  D.  817 193,  227 

Miller  v.  City  of  Buffalo,  129  A.  D.  833 106 

Midbury  v.  Butternuts,  &  S.  T.  Co.,  i  How.  Pr.  231 2400 

Miller  v.  Woodhead,  5  N.  Y.  S.  88 256 

MoUne  Auto  Co.  P.  DeLamater&B.  Auto  Co.,L.  J. 3/3i/'i5.35,  62 

Mott  v.  Consumers  Ice  Co.,  8  Daly,  244 38,  136 

Mossein  v.  Empire  State  Surety  Co.,  117  A.  D.  782..  .50,  51,  106 

Moraff  v.  Kohn,  157  A.  D.  648 151 

Moosbrugge  v.  Kaufman,  7  A.  D.  380 163 

Morgenthaler  v.  Carlin,  132  A.  D.  361 193 

Morse  v.  City  of  Troy,  38  Hun,  301 212 

Murdock  v.  Adams,  10  Hun,  566 n 

Murtha  v.  Curley,  92  N.  Y.  359 137,  148 

Murthey  v.  Burke,  121  A.  D.  400 148 

Muller  v .  Brooklyn  H.  R.  Co.,  139  A.  D.  727 252 

Me 

McDermott  v.  Yvelin,  103  A.  D.  418 16 

McCarthy  v.  Innis,  61  Hun,  354 163 

McEntyre  v.  Tucker,  40  A.  D.  /|/|1 100 

McNally  v.  Rowan,  101  A.  D.  342 i87a 

McVicar  v.  Keating,  19  A.  D.  581 i86b 

McWilliams  v.  Dayton,  27  Misc.  828 68 

McWhirter  v.  Bowen.  1 14  A.  D.  68 112 


xxviii  INDEX  TO  CASES  CITED 

References  are  to  sections 
N 

Newhal  v.  Appleton,  4  Mo.  Law  Bui.  6 54 

Newman  v.  Greif,  3  Civ.  Pro.  Rep.  362 170 

New  York  Bank  Note  Co.  v.  Hamilton  Bank  N.  Co.,  75 

N.  Y.  S.  520 200 

Neugrosche  v.  Manhattan  R.  Co.,  i  State  Rep.  302 208 

Nichols  v.  Moloughny,  85  A.  D.  i 217 

Noble  v.  Crandel,  49  Hun,  474 I 

Norton  v.  Fancher,  36  N.  Y.  S.  1032 2 

Norton  v.  Erie  R.  R.  Co.,  83  Misc.  159 37 

Nobis  v.  Pollock,  18  Civ.  Pro.  Rep.  i 54,  102 

O 

O'Keefe  v.  Shipherd,  23  Hun,  171 20 

O'Brien  v.  Commercial  Fire  Ins.  Co.,  38  N.  Y.  Sup.  Ct.  4.  .  .  166 

Obermeyer  &  L.  v.  Adinsky,  123  A.  D.  272 253 

Olifier  v.  Belmont,  24  Civ.  Pro.  Rep.  408 72 

O'Loughlin  v.  Hammond  &  Co.,  12  Civ.  Pro.  Rep.  171 237 

O'Neil  v.  Mansfield,  47  Misc.  516 82 

O'Rourke  v.  Degnon  R.  T.  Improvement  Co.,  139  A.  D.  695.  244 

P 

Paine  Lumber  Co.  v.  Galbraith,  38  A.  D.  68 I 

Pagano  v.  Lacobelli,  L.  J.  Jan.  22,  '14 34,  56 

Parker  v.  Baxter,  19  Hun,  410 199 

Parkinson  v.  Scott,  5  Misc.  261 209 

Park  t>.  N.  Y.  C.  &  H.  R.  R.  Co.,  33  Misc.  320 224 

Park  v.  N.  Y.  C.  &  H.  R.  R.  Co.,  57  A.  D.  569 224 

Patrick  v.  N.  Y.  State  Ry.  Co..  85  Misc.  473 30 

Patterson  v.  Woodbury  Derm.  Inst.,  117  A.  D.  600 157 

Penfield  v.  James,  4  Hun,  69 14 

Petrakion  v.  Arbeely,  23  Civ.  Pro.  Rep.  183 68 

Penfield  v.  City  of  N.  Y.  et  a/.,  102  N.  Y.  S.  784 74 

Perkins  v.  Brainard,  1 1  Misc.  337 93 

Pease  v.  Penn.  R.  R.  Co.,  137  A.  D.  459 94,  104 

Peck  v.  Haverstraw  Water  Supply  Co.,  81  Misc.  428 141 


TABLE  OF  CASES  CITED  xxix 

References  are  to  sections 

Perkins  v.  Heert,  14  Misc.  425 178 

Ferine  v.  Wiggins,  18  Civ.  Pro.  Rep.  172 i86a 

People  v.  Newcomb,  75  Misc.  258 25 

People  v.  Keller,  35  Misc.  785 • 146 

People  v.  Quiggley,  75  Misc.  151 179 

People  v.  Town  Auditors,  42  A.  D.  250 183 

People  v.  Bank  of  Staten  I.,  70  Misc.  637 197 

People  ex  rel.  v.  Barker,  90  Hun,  254 134 

People  ex  rel.  v.  Pratt,  50  State  Rep.  355 134 

Pfister  v.  Sturnm,  7  Misc.  526 i87b 

Phipps  v.  Carman,  23  Hun,  150 199 

Philbrook  v.  Kellogg,  21  Hun,  238 256 

Pike  v.  Nash,  16  How.  Pr.  53 .' 244 

Pinckney  v.  Childs,  7  Bosw.  660 186 

Porter  v.  Cobb,  25  Hun,  184 184 

Post  v.  N.  Y.  Central  R.  R.  Co.,  12  How.  Pr.  552 186 

Pomeroy  v.  Huhlin,  7  How.  Pr.  Rep.  161 186 

Pratt  v.  Allen,  16  How.  Pr.  450 22 

Price  v.  Price,  61  Hun,  604 41 

Pratt  v.  Clark,  124  A.  D.  248 224,  229 

R 

Raff  v.  Koster  Bial  &  Co.,  27  Misc.  47 216 

Ranney  v.  Russell,  3  Duer,  689 186 

Ranzenhoffer  v.  Barrere,  L.  J.  Sep.  30,  1916 32 

Rapid  Safety  Filter  Co.  v.  Wyckoff,  20  Misc.  429 144,  146 

Rathbone  v.  McConnel,  21  N.  Y.  466 140 

Regelman  v.  The  South  S.  T.  Co.,  67  Misc.  590 i 

Reilly  v.  Lee,  33  A.  D.  201 163 

Reichel  v.  N.  Y.  C.  &  H.  R.  R.  Co.,  18  Civ.  Pro.  Rep.  256.  .  248 

Re  Hess,  48  Hun,  586 257 

Rieger  v.  Swan,  2  Misc.  467 18 

Rich  v.  Roberts,  18  Civ.  Pro.  Rep.  205 ' 188 

Richardson  v.  Richardson,  5  Paige,  58 210 

Ridabock  a.  Met.  El.  R.  R.  Co.,  8  A.  D.  309 224 

Rinaldo  v.  Cowen,  22  N.  Y.  S.  1075 60 


xxx  INDEX  TO  CASES  CITED 

References  are  to  sections 

Robert  v.  Aden,  2  City  Court  Rep.  302 32 

Rose  v.  Swarthout,  73  Misc.  583 6,  167,  218,  222 

Roome  v.  Jennings,  3  Misc.  413 69 

Rowe  v.  Gerry,  109  A.  D.  156 100 

Robertson  v.  Rochester  Folding  Box  Co.,  68  A.  D.  528 126 

Rohrs  v.  Rohrs,  72  Misc.  108 164 

Rothery  v.  N.  Y.  Rubber  Co.,  90  N.  Y.  30 242 

Rudd  v.  Cropsey,  L.  J.  Dec.  6,  '15 30 

S 

Salerno  v.  Vogt,  78  Misc.  64 189 

Saffier  v.  Haft,  86  A.  D.  284 256 

Schum  v.  City  of  Rochester,  16  Civ.  Pro.  Rep.  218 18 

Schenck  v.  Fancher,  14  How.  Pr.  95 64 

Schmidt  v.  Mackie,  9  Weekly  Digest,  288 Q& 

Schwartz  v.  Ribaudo,  63  Misc.  64 128- 

Scheu  v.  Blum,  1 19  A.  D.  825 204 

Schwinger  v.  Hickox,  46  How.  Pr.  1 14 2igb 

Seifter  v.  Brooklyn  Heights  R.  R.  Co.,  53  A.  D.  443 2q,  30 

Seneca  N't'l  Bank  v.  Hawley,  32  Hun,  288 96 

Seymour  v.  Wheeler,  137  A.  D.  52 152 

Seldin  v.  Block,  153  N.  Y.  S.  980 156 

Senter  v.  Petheram,  64  Misc.  294 1 79 

Seasongood  v.  Elevated  R.  R.  Co.,  46  N.  Y.  State  Rep.  832..  223 

Shufelt  v.  Power,  13  How.  Pr.  89 47 

Shaver  v.  Eldred,  86  Hun,  51 131 

Sipperly  v.  Warner,  9  How.  Pr.  332 46,  47 

Singer  M'f'g  Co.  v.  Granite  Spring  W.  Co.,  67  Misc.  575 70 

Sinne  v.  City  of  N.  Y.,  8  Civ.  Pro.  Rep.  252n 242 

Smith  v.  Walker,  131  N.  Y.  S.  676 J45 

Smith  v.  Servis,  59  Hun,  552 170 

Smith  v.  Cooper,  30  Hun,  395 - 181 

Smith  v.  Kerr,  i  N.  Y.  S.  454 i8& 

Smith  v.  Dunn,  94  A.  D.  429 193. 

Smith  v.  Hutton,  134  A.  D.  445 243,  245 

Smith  v.  Cayuga  Lake  Cement  Co.,  107  A.  D.  524 255 


INDEX  TO  CASES  CITED  xxxi 

References  are  to  sections 

Smith  v.  Duffy,  8  N.  Y.  Civ.  P.  Rep.  191 256 

Smith  v.  Sheldon,  94  A.  D.  497 i87a 

Studwell  v.  Baxter,  33  Hun,  331 61 

Starr  Cash  C.  Co.  v.  Reinhardt,  6  Misc.  365 97,  136,  138 

Stanton  v.  King,  76  N.  Y.  585 103 

Streep  v.  McLoughlin,  36  Misc.  165 104 

Stevenson  v.  Pusch,  40  How.  Pr.  91 i  n 

Stevens  v.  Central  N't'l  Bank,  168  N.  Y.  560 137 

Streat  v.  Wolf,  132  A.  D.  873 150,  157 

Stearns  v.  Titus,  1 14  A.  D.  197 160 

Steiner  v.  Ainsworth,  53  How.  Pr.  31 173,  174,  175 

Sturgis  v.  Spofford,  58  N.  Y.  103 189 

Starkweather  v.  Sundstorm,  113  A.  D.  401 224 

Sutphen  v.  Lash,  10  Hun,  120 35,  61 

Swarthout  v.  Scheideberg,  68  Misc.  133 155 

Syracuse  Savings  Bank  v.  Stokes,  71  Misc.  508 82 

Syms  v.  Mayor,  105  N.  Y.  153 104 

T 

Talcott  v.  Jonasson,  42  Misc.  372 7,  u,  12 

Tallman  v.  Bernhard,  75  Hun,  30 68 

Talcott  v.  The  Wabash  R.  R.  Co.,  99  A.  D.  239 105 

Taaks  v.  Schmidt,  25  How.  Pr.  340 237,  243,  246 

Tillspaugh  v.  Dick,  8  How.  Pr.  33 32,  48 

Tillman  ».  Keane,  i  Abb.  N.  S.  23 188 

Third  N't'l  Bank  of  Syracuse  v .  McKinstry,  2  Hun,  443 41 

Thompson  v.  Stanley,  22  Civ.  Pro.  Rep.  348 72,   75 

Thomas  v.  Evans,  50  Hun,  441 138 

Thayer  v.  Holland,  63  How.  Pr.  180 164 

Town  of  Pierrepont  v.  Loveless,  4  Hun,  681 220 

Turkheim  v.  Thomas,  113  A.  D.  123 28,  71 

Turner  v.  Woolworth,  153  A.  D.  293 254 

U 

Union  Trust  Co.  v.  Whiton,  78  N.  Y.  491 '137 

Ury  v.  WUde,  3  N.  Y.  S.  791 164 


xxxii  INDEX  TO  CASES  CITED 

References  are  to  sections 
V 

Van  Gelden  v.  Hallenbeck,  2  N.  Y.  S.  252 34 

Van  Gelden  v.  Hallenbeck,  18  State  Rep.  19 54 

Van  Gelden  v.  Hallenbeck,  25  Civ.  Pro.  Rep.  333 181 

Van  Vliet  v.  Kanter,  139  A.  D.  602 55 

Van  Allen  v.  Am.  N't'l  Bank,  10  Abb.  Pr.  N.  S.  331 104 

Vandever  v.  Warren,  n  Civ.  Pro.  Rep.  319 53 

Valk  v.  Erie  R.  R.  Co.,  128  A.  D.  470 176,  247 

Vibbard  v.  Kruser  Const.  Co.,  145  A.  D.  673 15,  226 

Veeder  v.  Mudgett,  27  Hun,  519 228 

Vogt  v.  Oettinger,  88  Hun,  52 71 

Von  Schuckman  v.  Heinrich,  93  A.  D.  278,  p.  281 203 

W 

Walker  v.  Johnson,  8  How.  Pr.  240 i86a 

Wallnut  Hill  Bank  v.  N't'l  Reserve  Bank,  76  Misc.  208 137 

Warren  v.  Warren,  203  N.  Y.  250 178,  179 

Warden  v.  Frost,  35  Hun,  141 189 

Warren  v.  Chase,  8  Misc.  520 215 

Ward  v.  Ward,  23  Civ.  Pro.  Rep.  61 249 

Wasserman  v.  Benjamin,  91  A.  D.  547 252 

Washburne  v.  Oliver,  62  How.  Pr.  482 44 

Weiss  et  al.  v.  Morrel  et  al.,  7  Misc.  541 40 

Wessels  v.  Carr,  22  Abb.  Pr.  N.  C.  464 87 

Webb  v.  Nortin,  10  How.  Pr.  117 108 

Weltman  v.  Posenbecker,  19  Misc.  592 213 

Weber  v.  Weber,  93  A.  D.  149 252 

Weill  v.  Weill,  18  Civ.  Pro.  Rep.  241 254 

Whitlegge  v.  DeWitt,  12  Daly,  319 164 

Wheeler  v.  Lozee,  12  How.  Pr.  446 237 

Wilkins  v.  Williams,  3  N.  Y.  S.  897 140 

Wolff  v.  Horn,  9  Misc.  100 14,  198,  227,  238 

Wolkoff  v.  Silverstein,  L.  J.  Dec.  10,  '13 49 

Wood  v.  Excise  Comm.,  9  Misc.  507 184 

Z 

Zinsser  v.  Herrman,  24  Misc.  689 249 


TAXATION  OF  COSTS 

CHAPTER  I 

TAXING  COSTS   IN  GENERAL 

§1.  General  appearance  necessary  to  obtain  allowance  of 
costs. 

2.  Statutory  costs  in  law  actions. 

3.  Actions  in  equity. 

4.  Clerk  must  follow  statute  or  order  of  the  court  in  taxing 

costs. 
6.  There  must  be  a  verdict,  etc.,  before  costs  may  be  taxed. 

6.  When  clerk's  taxation  not  disturbed. 

7.  Clerk  must  examine  bill  carefully. 

8.  Power  of  clerk  to  adjourn  taxation. 

9.  Costs  belong  to  party. 

10.  When  clerk  is  doubtful  whether  action  is  in  tort  or  con- 

tract. 

11.  Clerk  not  to  dismiss  taxation. 

12.  Dismissal  of  taxation. 

13.  Retaxation.    (a)  Costs  reduced  on  taxation. 

14.  Review  of  taxation  by  the  court. 

15.  When  retaxation  not  required  after  review  by  court. 

16.  Appeal  from  judgment  does  not  prevent  retaxation  on 

the  merits. 

17.  Clerk  must  tax  bills  of  several  defendants  when  pre- 

sented. 

18.  Only  items  objected  to  are  reviewable  by  the  court. 

19.  Judgment  incomplete  without  inserting  costs  therein. 

20.  Stipulation  as  to  costs. 

21.  Two  or  more  actions  tried  as  one. 

22.  Only  one  bill  of  costs  against  several  defendants. 


2  TAXATION  OF  COSTS 

§  23.  When  defendant  succeeds  against  one  of  several  plain- 
tiffs. 

24.  Interest  on  verdict  forms  no  part  of  bill  of  costs. 
26.  Abatement  of  action. 

§  1.  General  appearance  necessary  to  obtain  allowance 
of  costs. 

There  must  be  a  general  appearance  by  the  attorney 
or  an  appearance  in  fact  by  the  party  to  entitle  him  to 
the  allowance  of  costs. 

The  service  by  an  attorney  of  an  order  to  show  cause 
or  notice  of  motion  why  an  injunction  should  not  be 
vacated  is  not  a  general  appearance.  Regelman  v.  The 
South  S.  T.  Co.,  67  Misc.  590;  Paine  Lumber  Co.  v. 
Goldbrant,  38  A.  D.  68.  Nor  is  a  motion  made  to  set 
aside  a  judgment  considered  a  general  appearance  but 
a  special  appearance.  Noble  v.  Crandel,  49  Hun,  474. 
An  order  extending  time  to  answer  is  not  equivalent 
to  an  appearance  under  section  421  of  the  Code  of  Civ. 
Pro.  Krause  v.  Averill,  66  How.  Pr.  97;  Littauer  v. 
Stern,  177  N.  Y.  233. 

§  2.  Statutory  costs  in  actions  at  law. 

Where  the  costs  are  statutory  the  court  has  no  power 
to  grant  or  withhold  the  same,  and  the  additional  words 
"with  costs"  are  ineffective  nor  does  "without  costs" 
deprive  the  party  of  the  right  to  costs.  Jones  v.  Emery, 
i  N.  Y.  Civ.  Pro.  Rep.  338;  Norton  v.  Fancher,  36  N. 
Y.  S.  1032. 

Motion  costs  are  discretionary  with  the  court  and 
may  be  allowed  or  disallowed;  they  cannot,  however, 
exceed  $10  besides  disbursements  under  the  provisions 


TAXING  COSTS  IN  GENERAL  3 

of  subdivision  3,  par.  9  of  section  3251  of  the  Code  of 
Civil  Procedure. 

§  3.  Actions  in  equity. 

In  equity  actions  costs  are  discretionary  with  the 
court,  except  as  limited  in  section  3230  of  the  Code 
which  provides  that  the  sum  allowed  should  not  exceed 
the  total  amount  authorized  by  the  statute.  Where  the 
judgment  demands  a  sum  of  money  only,  section  3228 
of  the  Code,  subdivision  4  thereof,  governs  the  statutory 
costs  that  must  be  allowed. 

§  4.  Clerk  must  follow  statute  or  order  of  the  court  in 
taxing  costs. 

Sec.  3262.  Costs  must  be  taxed  by  the  clerk, 
upon  the  application  of  the  party  entitled  thereto; 
except  that  the  court  may  direct,  that  interlocutory 
costs,  or  costs  in  a  special  proceeding  be  taxed 
by  a  judge.  The  clerk  must  insert  in  the  judg- 
ment or  final  order,  the  amount  of  the  costs  as 
taxed  *  *  *  . 

Sec.  3263.  Costs  may  be  taxed,  upon  notice  to 
the  attorney  for  each  adverse  party,  who  has  ap- 
peared, and  is  interested  in  reducing  the  amount 
thereof.  Notice  of  taxation  must  be  served,  not 
less  than  five  days  before  the  taxation;  unless  the 
attorneys,  serving  and  served  with  the  notice,  all 
reside,  or  have  their  offices,  in  the  city  or  town, 
where  the  costs  are  to  be  taxed;  in  which  case  a 
notice  of  two  days  is  sufficient.  A  copy  of  the 
bill  of  costs  specifying  the  items,  with  the  disburse- 
ments stated  in  detail,  must  be  served  with  the  no- 
tice of  taxation. 


4  TAXATION"  OF  COSTS 

In  the  City  Court  time  for  service  of  notice  of  taxa- 
tion is  set  forth  in  section  3161,  subdivision  6,  which 
reads  as  follows: — 

Notice  of  taxation  of  costs  not  less  than  two  days; 
except  where  all  the  attorneys,  serving  and  served 
with  the  notice,  reside  or  have  their  offices  in  the 
city  of  New  York,  in  which  case  one  day's  notice 
is  sufficient. 

Costs  are  the  creature  of  the  statute  and  cannot  be 
imposed  except  in  the  cases  authorized  by  its  provisions, 
and  the  clerk  has  no  authority  to  tax  costs  except  such 
as  may  be  conferred  upon  him  by  statute  or  by  an  order 
of  the  court.  Cassidy  v.  McFarland,  139  N.  Y.  208. 
The  authority  of  the  clerk  to  tax  costs  upon  the  appli- 
cation of  a  party  and  without  an  express  order  of  the 
court,  is  to  be  found  in  section  3262  of  the  Code.  This 
applies  to  cases  in  which  costs  are  to  be  inserted  in  a 
judgment  or  final  order.  Carter  v.  Builders'  Construc- 
tion Co.,  134  A.  D.  553. 

§  6.  There  must  be  a  verdict,  etc.,  before  costs  may  be 
taxed. 

There  must  be  a  verdict,  report  of  a  referee,  or  an 
order  of  the  court  before  the  clerk  may  tax  costs.  Bailey 
v.  Stone,  41  How.  Pr.  346. 

§  6.  When  clerk's  taxation  not  disturbed. 

Where  the  affidavit  of  the  successful  party  as  to  dis- 
bursements stating  that  the  amount  paid  is  correct, 
true  and  reasonable,  and  actually  and  necessarily  in- 
curred, is  met  by  an  affidavit  of  the  opposing  party  that 


TAXING   COSTS  IN  GENERAL  5 

the  amount  was  not  necessarily  paid  or  incurred  under 
section  3256  of  the  Code  of  Civil  Procedure,  the  action 
of  the  clerk  in  taxing  the  disbursements  will  not  be 
disturbed.  Rose  v.  Swarthout,  73  Misc.  583. 

§  7.  Clerk  must  examine  bill  carefully. 

It  is  the  duty  of  the  clerk  carefully  to  examine  the 
bill  presented  to  him  and  to  satisfy  himself  that  all  the 
items  allowed  by  him  are  correct  and  legal  in  accordance 
with  section  3266  of  the  Code.  The  court  holding,  "it 
was  not  intended  to  allow  an  obviously  illegal  taxation 
to  stand  because  the  items  were  not  formally  objected 
to  before  the  clerk,  since  the  party  against  whom  the 
taxation  is  ordered  is  justified  in  relying  on  the  clerk's 
obligation  to  satisfy  himself,  whether  opposition  is  pres- 
ent or  not,  that  the  items  are  correct  and  legal."  Feiber 
v.  Home  Silk  Mills,  L.  J.,  Nov.  10,  1914;  Talcott  v. 
Jonasson,  42  Misc.  372. 

§  8.  Power  of  clerk  to  adjourn  taxation. 

The  clerk  has  power  to  adjourn  the  taxation  of  costs. 
Agricultural  Insurance  Co.  v.  Bean,  45  How.  Pr.  444. 

§  9.  Costs  belong  to  party. 

Costs  awarded  to  a  party  in  an  action  belong  to  the 
party  and  not  to  the  attorney.  Barry  v.  Third  Ave. 
Railroad  Co.,  87  A.  D.  543. 

§  10.  When  clerk  is  doubtful  whether  action  is  in  tort 
or  contract. 

Where  the  allegations  of  a  complaint  make  it  doubtful 
whether  an  action  is  in  tort  or  in  contract,  it  should  be 


6  TAXATION  OF  COSTS 

considered  ex  contractu  and  the  costs  before  notice  of 
trial  taxed  at  $15.    Lange  v.  Schile,  in  A.  D.  613. 

§  11.  Clerk  not  to  dismiss  taxation. 

The  clerk  should  not  dismiss  a  taxation  of  costs  upon 
the  failure  of  a  party  to  appear.  Section  3266  of  the 
Code  places  the  duty  upon  the  clerk  of  ascertaining 
and  satisfying  himself,  as  the  taxing  officer  of  the  court, 
that  all  the  items  of  the  bill  of  costs  are  "correct  and 
legal,"  and  proper  notice  of  retaxation  having  been 
given,  it  is  not  essential  to  such  determination  that 
the  party  should  be  present  at  the  time  named  for  such 
retaxation.  Talcott  v.  Jonasson,  43  Misc.  372. 

After  the  clerk  once  taxes  costs  he  cannot  retax  them 
in  the  absence  of  both  parties.  Murdock  v.  Adams, 
10  Hun,  566. 

§  12.  Dismissal  of  taxation. 

Where,  however,  the  clerk  does  dismiss  the  retaxation 
because  of  the  failure  of  the  adverse  party  to  appear, 
such  costs  should  not  again  be  noticed  for  retaxation 
under  section  3264  of  the  Code.  The  remedy  is  to  re- 
view the  original  taxation  by  a  motion  for  a  new  taxa- 
tion under  section  3265  of  the  Code.  Talcott  v.  Jonasson, 
43  Misc.  372. 

§  13.  Retaxation. 

Sec.  3264.  Costs  may  also  be  taxed  without 
notice.  But  where  they  are  so  taxed,  notice  of 
retaxation  thereof  must  immediately  afterwards 
be  given  as  prescribed  in  the  last  section,  by  the 
party  at  whose  instance  they  were  taxed;  in  default 


TAXING   COSTS  IN  GENERAL  7 

whereof,  the  court  must,  upon  the  application  of 
a  party  entitled  to  notice,  direct  a  retaxation,  with 
costs  of  the  motion,  to  be  paid  by  the  party  hi 
default  *  *  *  . 

A  defendant  who  appears  is  entitled  to  notice  of  re- 
taxation  of  costs  although  he  does  not  answer.  Gil- 
martin  v.  Smith,  6  N.  Y.  Sup.  Ct.  684.  When,  therefore, 
after  having  taxed  his  bill  of  costs  without  notice,  the 
party  failed  to  have  the  same  noticed  for  retaxation, 
the  court  ordered  that  all  the  proceedings  on  the  part 
of  the  plaintiff  and  the  sheriff  toward  the  collection 
of  the  judgment  be  stayed  pending  such  retaxation. 
Fordyce  v.  Wolff,  L.  J.  May  yth,  1915. 

(a)  Costs  reduced  on  retaxation. 

If  costs  are  reduced  on  retaxation,  the  judgment  is 
not  to  be  changed  but  the  amount  of  the  reduction  is 
to  be  credited  on  the  execution.  Hewitt  v.  City  Mills, 
136  N.  Y.  211-13. 

§  14.  Review  of  taxation  by  the  court. 

Sec.  3265.  A  taxation  or  a  retaxation  may  be 
reviewed  by  the  court,  upon  a  motion  for  a  new 
taxation.  The  order  made  upon  such  a  motion 
may  allow  or  disallow  any  item,  objected  to  before 
the  taxing  officer,  in  which  case  it  has  the  effect  of 
a  new  taxation;  or  it  may  direct  a  new  taxation 
before  the  proper  officer,  specifying  the  grounds 
or  the  proof  upon  which  the  item  may  be  allowed 
or  disallowed  by  him. 

Only  those  papers  which  were  before  the  clerk  upon 
taxation  of  costs  can  be  considered  upon  a  motion  to 


8  TAXATION  OF  COSTS 

correct  his  decision.  Evans  v.  Silberman,  7  A.  D.  139; 
Levitas  v.  Hart,  117  N.  Y.  S.  1027;  Grotty  v.  DeDion 
Bouton  M.  Co.,  102  A.  D.  405.  Where  oral  objection 
is  made,  an  affidavit  can  be  made  showing  what  took 
place,  but  this  does  not  allow  the  submission  of  affidavits 
on  the  merits.  Lyman  v.  Young  Men's  Cosmopolitan 
Club,  38  A.  D.  220.  Statements  of  counsel  on  the  argu- 
ment which  were  not  before  the  clerk  on  the  taxation 
cannot  be  considered  by  the  court  on  review  of  such 
taxation.  Wolff  v.  Horn,  9  Misc.  100. 

Upon  a  motion  to  review  taxation,  when  the  objection 
raises  a  question  of  law,  the  Special  Term  should  allow 
or  disallow  the  item  instead  of  ordering  a  new  taxation. 
Crossley  v.  Cobb,  37  Hun,  271.  Taxation  should  be  re- 
viewed before  costs  are  paid.  Collomb  v.  Caldwell, 
5  How.  Pr.  336.  The  right  to  review  may  also  be  lost 
by  laches.  Penfield  v.  James,  4  Hun,  609.  However, 
the  party  entering  the  judgment  waives  his  right  to 
review  the  allowance  of  costs.  Burrows  v.  Butler,  38 
Hun,  121. 

§  15.  When  relaxation  not  required  after  review  by  court. 

Although  the  clerk  may  have  determined  the  amount 
taxed  under  the  wrong  section  of  the  Code,  nevertheless 
since  the  court  at  Special  Term  adjudged  the  amount 
reasonable  it  was  not  necessary  to  order  a  retaxation. 
Vibbard  v.  Kinser  Construction  Co.,  145  A.  D.  673. 

§  16.  Appeal  from  judgment  does  not  prevent  retaxation 
on  the  merits. 

Although  a  substantial  period  such  as  twelve  days, 
have  elapsed  since  the  original  taxation,  the  court  held 


TAXING  COSTS  IN  GENERAL  9 

that  the  party  is  still  entitled  to  have  the  motion  for 
relaxation  considered  upon  the  merits,  notwithstanding 
that  during  the  interval  an  appeal  from  the  judgment 
had  been  taken  and  an  undertaking  on  appeal  filed. 
McDermott  v.  Yvelin,  103  A.  D.  418. 

§  17.  Clerk  must  tax  bills  of  several  defendants  when 

presented. 

The  clerk  has  no  authority  to  determine  the  question 
whether  several  defendants  should  be  limited  to  one 
bill  of  costs  on  the  ground  that  the  separate  defenses 
were  interposed  by  them  unnecessarily  so  as  to  enhance 
the  costs.  The  clerk  can  exercise  no  judicial  power 
in  granting  or  refusing  costs.  It  is  within  the  province 
of  the  court  at  Special  Term  upon  motion  in  a  proper 
case  to  make  such  limitation.  Kaplan  v.  Olsen,  118 
N.  Y.  S.  634. 

§  18.  Only  items  objected  to  are  reviewable  by  the 
court. 

Upon  a  review  of  taxation  only  such  items  may  be 
considered  as  were  objected  to  before  the  taxing  officer 
at  time  of  taxation.  Where  there  has  been  no  objection 
made  to  any  item,  the  party  is  in  no  position  to  ask  for 
any  relief.  LaRosa  v.  Wilner,  54  Misc.  574;  Fourteenth 
Street  Bank  v.  Strauss,  54  Misc.  588. 

On  review  in  an  Appellate  Court  of  the  clerk's  taxation 
of  costs,  the  defendant  cannot  raise  the  point  that  there 
was  insufficient  proof  before  the  clerk,  when  the  same 
was  supplied  at  Special  Term  without  objection  on  his 
part  Rieger  v.  Swan,  2  Misc.  467. 

Upon  an  appeal  from  an  order  denying  a  motion  for 


io  TAXATION  OF  COSTS 

a  relaxation  of  costs,  where  it  appears  that  the  only 
objection  made  before  the  clerk  on  taxation  was  to  the 
effect  that  the  plaintiff  was  not  entitled  to  tax  costs 
because  the  main  issue  in  the  action  was  not  disposed 
of  and  no  final  judgment  was  authorized,  the  court  is 
not  called  upon  to  consider  the  various  items  embraced 
in  the  bill,  but  only  to  consider  and  determine  whether 
the  clerk  properly  taxed  the  bill  presented.  Schum  v. 
City  of  Rochester,  16  Civ.  Pro.  Rep.  218. 

§  19.  Judgment    incomplete    without    inserting    costs 

therein. 

A  judgment  roll  is  not  complete  until  the  costs  are 
inserted  therein.  Allen  v.  Wells,  Fargo  Co.,  95  N.  Y.  S. 

597- 

§  20.  Stipulation  as  to  costs. 

Attorneys  may  stipulate  the  amount  to  be  paid  to 
referees  under  section  3296  of  the  Code  of  Civil  Proce- 
dure, but  cannot  stipulate  to  increase  the  amount  of 
costs.  O'Keefe  v.  Shipherd,  23  Hun,  171. 

§  21.  Two  or  more  actions  tried  as  one. 

Where  a  stipulation  has  been  entered  into  by  the 
attorneys  that  two  or  more  actions  should  be  tried  to- 
gether or  that  one  action  is  to  abide  the  event  of  the 
other,  a  full  bill  of  costs  may  be  taxed  in  each  case  in- 
cluding a  trial  fee.  Koch  v.  Koch,  i  City  Court  Rep. 
55;  Hauselt  v.  Godfrey,  3  N.  Y.  Civ.  Pro.  Rep.  116. 

So  held  in  cases  on  appeal  although  only  one  argu- 
ment was  had.  Hauselt  v.  Godfrey,  3  N.  Y.  Civ.  Pro. 
Rep.  1 1 6. 


TAXING  COSTS  IN  GENERAL  n 

Similarly  a  full  bill  of  costs  may  be  taxed  including 
a  trial  fee  in  an  action  which  is  stayed  upon  stipulation 
until  the  determination  of  another  action  the  result  of 
which  is  to  be  adopted  as  final,  and  judgment  to  be 
entered  as  if  a  trial  had  been  had.  Audenreid  v.  Wilson, 
2  N.  Y.  Weekly  Dig.  108. 

§  22.  Only  one  bill  of  costs  against  several  defendants. 

Where  two  or  more  defendants  appear  by  different 
attorneys  and  plaintiff  recovers  judgment  against  all 
of  them  he  is  entitled  to  tax  only  one  bill  of  costs.  Cod- 
ding v.  Scott,  21  N.  Y.  S.  473;  Buell  v.  Gray,  13  How. 
Pr.  31;  Pratt  v.  Allen,  19  How.  Pr.  450. 

§  23.  When  defendant  succeeds  against  one  of  several 

plaintiffs. 

Where  several  plaintiffs  unite  in  an  action  against 
one  defendant,  and  some  plaintiffs  recover  against  de- 
fendant and  as  to  the  others  defendant  succeeds,  de- 
fendant can  enter  judgment  for  costs  against  the  latter. 
Knowlton  v.  Pierce,  41  How.  Pr.  361. 

§  24.  Interest  on  verdict  forms  no  part  of  bill  of  costs. 

Section  1235  of  the  Code  of  Civil  Procedure  pro- 
vides:— 

Where  final  judgment  is  rendered  for  a  sum  of 
money  awarded  by  a  verdict,  report,  or  decision, 
interest  upon  the  sum  awarded,  from  the  time 
when  the  verdict  was  rendered,  or  the  report  or 
decision  was  made,  to  the  time  of  entering  judg- 
ment, must  be  computed  by  the  clerk,  added  to 
the  sum  awarded,  and  included  in  the  amount  of 
the  judgment. 


12  TAXATION  OF  COSTS 

Therefore  the  interest  on  a  verdict  from  the  date  of 
its  rendition  should  be  included  in  the  judgment  and 
is  not  collected  as  costs  on  any  taxation  or  on  any  order 
of  the  appellate  court  affirming  it.  It  is  a  part  of  the 
original  recovery  and  has  no  relation  to  costs  or  dis- 
bursements in  the  action.  Matter  of  Smith,  161  A.  D. 
638,  p.  642. 

§  25.  Abatement  of  action. 

Where  an  action  brought  is  such  that  it  abates  with 
the  death  of  the  party,  the  costs  cannot  be  taxed  in 
favor  of  one  or  the  other  upon  the  death  of  the  party. 
People  v.  Newcomb,  75  Misc.  258. 


CHAPTER  II 

COSTS  BEFORE  NOTICE  OF  TRIAL 

§  26.  Statutory  provisions. 

27.  Nature  of  actions  within  §  420  of  the  Code  of  Civil  Pro- 

cedure. 

28.  Not  taxable  on  demurrers. 

§  26.  Statutory  provisions. 

The  plaintiff  is  entitled  to  $15  for  all  proceedings 
before  notice  of  trial  in  an  action  specified  in  section  420 
of  the  Code  of  Civil  Procedure;  in  every  other  case  $25. 
Sec.  3251,  sub.  i,  par.  i  of  the  Code. 

§  27.  Nature  of  actions  within  section  420  of  the  Code. 

Whether  an  action  comes  within  the  provisions  of 
section  420  of  the  Code  may  be  ascertained  from  a 
reading  of  the  complaint,  which  must  be  such  as  to 
permit  the  clerk  to  enter  judgment  without  application 
to  the  court.  They  are  actions  where  the  "complaint 
sets  forth  a  breach  of  contract  to  pay  a  sum  of  money 
fixed  by  the  terms  of  the  contract  or  capable  of  being 
ascertained  therefrom  by  computation  only;  or  a  con- 
tract to  pay  money  received  or  disbursed,  or  the  value 
of  property  delivered,  or  of  services  rendered,  to  or  for 
the  use  of  defendant  or  a  third  person;  and  demands 
judgment  for  a  sum  of  money  only.  This  includes  where 
breach  is  only  partial;  also  where  the  amount  claimed 
has  been  reduced  by  payment,  counterclaim  or  other 
vcredit." 

13 


I4  TAXATION  OF  COSTS 

An  action  for  breach  of  contract  of  employment  car- 
ries with  it  unliquidated  damages  and  plaintiff  is  en- 
titled to  $25  before  notice  of  trial.  Kramer  ».  Wien, 
L.  J.  Feb.  20,  1915. 

§  28.  Not  taxable  on  demurrers. 

Costs  before  notice  of  trial  are  not  taxable  upon  entry 
of  an  interlocutory  judgment.  Turkheim  v.  Thomas, 
113  A.  D.  123;  Louis  v.  Empire  State  Insurance  Co., 
75  Hun,  364;  Hill  v.  Muller,  53  Misc.  262. 


CHAPTER  III 

COSTS   AFTER   NOTICE    OF   TRIAL 

§  29.  Item  may  be  taxed  once  only. 

30.  When  more  than  one  charge  is  allowed. 

31.  Effect  of  return  of  notice  of  trial. 

32.  Failure  to  place  cause  on  the  calendar. 

§  29.  Item  may  be  taxed  once  only. 

Only  one  item  of  $15  should  be  allowed  for  costs  after 
notice  of  trial.  Seifter  v.  Brooklyn  Heights  R.  R.  Co., 
53  A.  D.  443;  Kummer  v.  Christopher  &c.  Street  Co., 
33  N.  Y.  S.  581. 

Thus  where  a  trial  was  had  and  the  jury  disagreed, 
and  at  a  trial  held  thereafter  a  verdict  was  rendered  for 
the  plaintiff  which  was  set  aside  for  the  misconduct 
of  the  jury,  and  subsequently  the  complaint  was  dismissed 
because  of  plaintiff's  default  which  was  opened  upon 
payment  of  costs  to  defendant,  and  a  verdict  having  been 
finally  rendered  for  plaintiff,  the  Court  held  that  only  $15 
could  be  taxed  for  all  proceedings  after  notice  and  be- 
fore trial.  Hudson  v.  Erie  R.  R.  Co.,  57  A.  D.  98;  sec.  977 
of  the  Code. 

§  30.  When  more  than  one  charge  is  allowed. 

There  are  some  instances  where  more  than  one  charge 
is  allowed,  as  where  both  relator  and  respondent  served 
upon  each  other  a  second  notice  of  trial.  The  court 
saying  in  part,  "whether  necessary  or  not,  the  litigants 
have  deemed  it  necessary  to  serve  a  new  notice  of  trial. 
There  were  in  fact  two  complete  trials.  Where  there  is 

is 


1 6  TAXATION  OF  COSTS 

in  fact  two  trials  a  reasonable  construction  of  the  Code 
entitles  the  successful  party  to  statutory  costs  to  both 
trials."  Distinguishing  Seifter  v.  Brooklyn  Heights  R.  R. 
Co.,  53  A.  D.  443;  Rudd  v.  Cropsey,  L.  J.  Dec.  6,  1915. 
In  Patrick  v.  N.  Y.  State  Ry.,  85  Misc.  473,  the  court 
holds  that  in  counties  where  only  one  notice  of  trial 
need  be  served,  only  one  item  should  be  allowed,  but  in 
counties  where  a  notice  of  trial  must  be  filed  for  each 
term  more  than  one  item  of  $15  will  be  allowed  for  costs 
after  notice  of  trial.  In  this  case  the  trial  was  not 
completed  because  of  a  juror's  illness  and  the  case  was 
again  noticed  for  trial  and  a  verdict  having  been  ren- 
dered for  plaintiff,  the  court  allowed  two  fees  for  after 
notice  and  before  trial.  Section  977  of  the  Code. 

§  31.  Effect  of  return  of  notice  of  trial. 

Where  the  defendant  declined  to  receive  and  accept 
a  notice  of  trial  served  upon  him  and  failed  to  file  or 
serve  a  cross  notice,  the  item  of  $15  costs  after  notice 
of  trial  was  stricken  out.  Hammer  v.  Shreiber,  L.  J. 
Dec.  10,  1912. 

§  32.  Failure  to  place  cause  on  the  calendar. 

Service  of  the  notice  of  trial  must  be  followed  by  the 
filing  of  a  note  of  issue  with  the  clerk  to  have  the  cause 
placed  on  the  calendar.  Failure  to  do  so  makes  the 
service  of  the  notice  of  trial  ineffective,  and  costs  after 
notice  of  trial  cannot  be  taxed.  Hoepfner  v.  Barzlay, 
L.  J.  Sept.  30,  1902;  Ranzenhoffer  v.  Barrere,  L.  J. 
Sept.  30,  1916;  Tillspaugh  v.  Dick,  8  How.  Pr.  33; 
although  Roberts  v.  Aden,  2  City  Court  Rep.  302,  holds 
that  the  item  should  properly  be  taxed. 


CHAPTER  IV 

TRIAL   FEE 

§  33.  In  general. 

34.  On  dismissal  of  action. 

35.  On  discontinuance  of  action. 

36.  Cause  on  short    cause   calendar  sent    back    to  gen- 

eral calendar. 

37.  Mistrial. 

38.  Disagreement  of  jury. 

39.  Withdrawal  of  juror. 

40.  Inquest. 

41.  Cause  sent  to  referee. 

41a.  Reference  to  admeasure  dower. 
41b.  Reference  cancelled. 

42.  Stipulation  that  costs  are  to  be  the  same  as  of  another 

trial. 

43.  Additional  costs  for  a  trial  lasting  more  than  two  days. 

44.  What  constitutes  period  of  trial. 

§  33.  In  general. 

Section  3251,  sub.  3,  par.  5  of  the  Code  of  Civil  Pro- 
cedure allows  $30  as  a  trial  fee  for  the  trial  of  an  issue 
of  fact.  The  general  rule  is  that  a  trial  fee  is  allowed 
for  each  trial  whether  such  trial  results  in  a  determina- 
tion of  the  question,  or  prove  abortive  for  any  reason. 
Dame  v.  Maynard,  139  A.  D.  385. 

§  34.  On  dismissal  of  action. 

Where  a  cause  is  at  issue  on  an  issue  of  fact  and  is 
regularly  noticed  for  trial  and  placed  on  the  calendar 

17 


1 8  TAXATION   OF  COSTS 

and,  when  reached  in  its  regular  order,  the  complaint 
is  dismissed  on  the  failure  of  the  plaintiff  to  appear, 
there  has  been  a  trial  of  the  action,  and  a  trial  fee  should 
be  taxed.  Pagano  v.  Lacobelli,  L.  J.  Jan.  22,  1914; 
Dodd  v.  Curry,  4  How.  Pr.  123;  VanGelden  v.  Hallen- 
beck,  2  N.  Y.  S.  252. 

Likewise  where  a  cause  of  action  comes  regularly  on 
the  calendar  for  trial  at  a  Trial  Term,  and  is  dismissed 
for  failure  of  plaintiff  to  appear,  and  default  is  opened 
without  terms,  and  a  second  trial  results  in  a  dismissal 
of  the  complaint,  defendant  is  entitled  to  two  trial  fees. 
Cole  v.  Lowery,  23  N.  Y.  S.  674. 

§  35.  On  discontinuance  of  action. 

Where  an  order  is  entered  discontinuing  an  action 
before  it  appears  on  the  day  calendar,  upon  payment 
of  costs,  a  trial  fee  cannot  be  taxed.  Sutphen  v.  Lash, 
10  Hun,  120;  Moline  Auto  Co.  v.  DeLamater-B.  Auto. 
Co.,  L.  J.  Mar.  31,  1915. 

§  36.  Cause  on  short  cause  calendar  sent  back  to  general 
calendar. 

Where  a  party  has  caused  an  action  to  be. placed  on 
the  short  cause  calendar  and  after  a  partial  trial  thereof, 
it  is  sent  back  to  the  general  calendar,  the  same  party, 
if  successful  on  the  second  trial,  cannot  tax  two  trial 
fees  because  the  court  will  not  allow  the  adversary  to 
be  charged  with  cost  of  a  trial  put  on  by  the  mistake 
of  the  other  party.  But  if  the  unsuccessful  party  has 
brought  the  cause  on  for  trial  on  the  short  cause  calen- 
dar, a  trial  fee  is  properly  taxable.  Browning  v.  Brokaw, 
114  A.  D.  104.  This  case  overrules  Gilroy  v.  Badger, 


TRIAL  FEE  19 

58  N.  Y.  S.  1106.  "There  can  be  no  reasonable  ground 
for  dispute  that  the  rule  which  permits  the  taxation 
of  a  trial  fee  for  a  mistrial  applies  only  to  cases  where 
the  party  finally  successful  was  not  responsible  for  the 
abortive  character  of  the  proceedings."  Fink  v.  Stachel- 
berg,  86  N.  Y.  S.  20. 

§37.  Mistrial. 

Likewise  where  the  plaintiff  was  allowed  to  withdraw 
a  juror,  thus  producing  a  mistrial,  so  that  he  might 
amend  his  pleading,  he  is  not  entitled  upon  recovery 
of  a  judgment  on  the  second  trial  to  have  taxed  against 
the  defendant  the  costs  after  notice  and  before  trial, 
and  the  trial  fee  of  the  first  trial.  Otherwise  if  the 
defendant  were  successful  in  the  action.  Norton  v. 
Erie  R.  R.  Co.,  83  Misc.  159. 

§  38.  Disagreement  of  jury. 

A  trial  fee  is  taxable  upon  the  disagreement  of  a  jury 
because  a  trial  without  a  verdict  is  still  a  trial,  the  work 
of  counsel  is  just  as  great  whether  the  jury  agree  or  not. 
Ellsworth  v.  Gooding,  8  How.  Pr.  i ;  Hamilton  v.  Butler, 
19  Abb.  Pr.  446;  Mott  v.  Consumers  Ice  Co.,  8  Daly,  244. 

§  39.  Withdrawal  of  juror. 

When  a  trial  has  been  duly  commenced  and  the  court 
has  allowed  the  withdrawal  of  a  juror  and  the  discon- 
tinuance of  the  trial,  it  is  considered  a  trial  within  the 
Code  for  the  purpose  of  taxing  a  trial  fee  for  the  party 
finally  successful  at  the  trial.  Block  v.  Linsley,  40  Misc. 
184. 


20  TAXATION  OF  COSTS 

§  40.  Inquest. 

A  trial  fee  is  allowed  the  plaintiff  upon  an  inquest 
under  the  section  of  the  Code  which  provides  for  a  trial 
fee  of  an  issue  of  fact.  Weiss  et  al.  v.  Morrel  et  al.,  7 
Misc.  541;  Hawley  v.  Davis,  5  Hun,  642. 

§  41.  Cause  sent  to  referee. 

Where  a  case  appears  before  a  court  and  is  then  sent 
to  a  referee,  such  reference  is  considered  as  a  continua- 
tion of  the  trial  and  only  one  trial  fee  is  allowed.  Boisse- 
vain  v.  Pope,  L.  J.  Aug.  28,  1909;  Price  v.  Price,  61  Hun, 
604. 

A  trial  fee  will  not  be  allowed  when  a  case  is  stopped 
during  a  hearing  and  then  sent  to  a  referee.  Third 
National  Bank  of  Syracuse  v.  McKinstry,  2  Hun,  443. 

(a)  Reference  to  admeasure  dower. 

Nor  will  a  reference  to  admeasure  dower  be  considered 
a  trial  within  section  3251  of  the  Code  and  therefore 
the  costs  as  of  a  trial  before  such  referee  cannot  be  taxed. 
Price  v.  Price,  61  Hun,  604. 

Nor  should  a  trial  fee  be  allowed  where  a  reference  is 
had  merely  auxiliary  to  an  application  for  judgment  on 
default  in  an  action  to  foreclose  a  tax  lien.  City  Tax 
Lien  Co.  v.  Murray,  91  Misc.  119. 

(b)  Reference  cancelled. 

However  an  allowance  of  a  trial  fee  before  a  referee 
will  be  made,  although  the  reference  is  cancelled. 
Where  therefore  a  referee  having  heard  the  case  re- 
ferred to  him,  delayed  his  decision  beyond  the  time 
allowed  him  under  section  1019  of  the  Code,  a  motion 


TRIAL  FEE  21 

was  made  to  cancel  the  reference  which  was  granted 
and  a  trial  fee  was  allowed,  the  court  holding  that  "there 
was  nothing  in  the  facts  to  take  it  out  of  the  general 
rule  that  a  trial  fee  was  allowed  for  each  trial,  whether 
such  trial  results  in  a  determination  of  the  question 
or  prove  abortive  for  any  cause."  Dame  v.  Maynard, 
139  A.  D.  385. 

§  42.  Stipulation  that  costs  are  to  be  the  same  as  of 
another  trial. 

Where  a  stipulation  has  been  entered  into  by  the 
attorneys  that  judgment  should  be  entered  with  costs 
upon  the  result  of  another  trial  "the  same  as  if  a  trial 
had  been  had,"  the  successful  party  is  entitled  to  a  trial 
fee.  Audenreid  v.  Wilson,  2  Weekly  Digest,  108. 

§  43.  Additional  costs  for  a  trial  lasting  more  than  two 
days. 

Additional  costs  of  $10  is  allowed  for  a  trial  lasting 
more  than  two  days  under  section  3251,  sub.  3,  par.  5, 
of  the  Code  of  Civil  Procedure.  So  that  where  each  .of 
three  trials  had  in  an  action  lasted  more  than  two  days, 
ten  dollars  was  allowed  in  addition  to  the  thirty  dol- 
lars trial  fee  in  each  of  the  three  trials.  Hudson  v.  Erie 
R.  R.  Co.,  57  A.  D.  98. 

§  44.  What  constitutes  period  of  trial. 

The  trial  begins  within  the  meaning  of  the  section 
of  the  Code,  when  the  judge  to  whom  the  cause  is  as- 
signed actually  directs  the  commencement  of  the  pro- 
ceedings which  constitutes  the  opening  of  the  trial.  The 
time  of  waiting  to  become  actually  engaged  is  not  to  be 


22  TAXATION  OF  COSTS 

included,  nor  is  the  time  after  the  submission  of  the 
case  to  the  court  or  jury  for  decision  within  the  meaning 
of  the  section.  Egan  v.  Interborough  Rapid  Transit 
Co.,  L.  J.  June  12,  1915. 

Where  the  jury  was  examined  and  then  adjourned 
because  the  trial  counsel  was  not  present,  and  subse- 
quent to  that  the  trial  lasted  two  days,  the  court  held 
that  the  trial  occupied  three  days.  Goodkind  v.  Metro- 
politan Street  Ry.  Co.,  L.  J.  June  n,  1904.  However, 
the  fact  that  counsel  was  given  time  to  submit  briefs 
should  not  be  considered  as  added  to  the  time  of  the 
trial  to  make  it  more  than  two  days  to  entitle  the  suc- 
cessful party  to  additional  costs.  Evans  v.  Ferguson, 
10  Civ.  Pro.  Rep.  57.  Nor  where  the  trial  of  an  action 
closed  at  the  end  of  the  second  day  and  the  jury  re- 
turned a  sealed  verdict  the  following  day,  the  court 
held  there  that  the  trial  lasted  only  two  days  and  that 
additional  costs  of  ten  dollars  could  not  be  taxed.  Wash- 
burne  v.  Oliver,  62  How.  Pr.  482. 


CHAPTER  V 

TERM   FEES 

§  45.  Statutory  provisions. 

46.  Cause  must  be  necessarily  on  the  calendar. 

47.  Stay  of  proceedings. 

48.  Term  fees  allowed  although  notice  was  filed  by  adver- 

sary. 

49.  Fee  for  one  term  only  in  the  City  Court. 

60.  No  costs  allowed  for  term  at  which  cause  is  tried  or 

disposed  of. 

61.  Effect  of  amendment  of  pleadings  on  term  fees. 

62.  Adjournment  to  other  terms  on  consent. 

53.  No  term  fee  allowed  in  Appellate  Term  of  the  Supreme 

Court. 
64.  Term  fees  in  other  appellate  courts 

§  45.  Statutory  provisions. 

The  statutory  provisions  relating  to  the  allowance 
of  term  fees  is  contained  in  section  3251,  subdivision  3, 
paragraph  10,  which  reads:  - 

For  one  term  of  the  City  Court  of  the  city  of 
New  York,  at  which  the  case  is  necessarily  on  the 
calendar,  and  for  each  trial  term  or  special  term, 
of  the  Supreme  Court,  or  any  County  Court,  not 
exceeding  five,  at  which  the  cause  is  necessarily 
on  the  calendar,  excluding  the  term  at  which  it 
is  tried,  or  otherwise  finally  disposed  of,  ten 
dollars. 

23 


24  TAXATION  OF  COSTS 

Paragraph  15  of  the  same  subdivision  and  section 
reads: — 

For  each  term  of  the  Appellate  Division,  not  ex- 
ceeding five,  of  the  Supreme  Court,  at  which  the 
cause  is  necessarily  on  the  calendar,  excluding  the 
term  at  which  it  is  argued,  or  otherwise  finally 
disposed  of,  ten  dollars. 

Paragraph  4  of  subdivision  5  of  same  section  reads: — 

For  each  term  (of  Court  of  Appeals),  not  exceeding 
ten,  at  which  the  cause  is  on  the  calendar,  exclud- 
ing the  term  at  which  it  is  argued,  or  otherwise  finally 
disposed  of,  ten  dollars. 

§  46.  Cause  must  be  necessarily  on  the  calendar. 

To  entitle  a  party  to  term  fees  the  cause  must  be  nec- 
essarily on  the  calendar.  Deyo  v.  Morss,  21  Misc. 

497- 

A  cause  is  necessarily  on  the  calendar  when  it  has  been 
noticed  for  trial  and  placed  on  the  calendar  ready  to  be 
tried  when  reached.  Sipperly  v.  Warner,  9  How.  Pr. 

332- 

Therefore,  unless  the  cause  is  in  a  condition  to  be 
tried  it  is  not  necessarily  on  the  calendar  and  no  term 
fee  can  be  allowed.  Bowen  v.  Sweeney,  66  Hun,  42. 

Nor  is  a  case  properly  on  the  calendar  until  all  the 
parties  have  been  served  and  all  of  them  have  answered. 
Bowen  v.  Sweeney,  66  Hun,  42. 

A  cause  is  not  considered  necessarily  on  the  calendar 
where  judgment  could  have  been  obtained  without 
noticing  it  for  trial  and  placing  it  on  the  calendar.  A 


TERM   FEES  25 

term  fee  in  that  event  will  not  be  allowed.     Candee  v. 
Ogilvie,  5  Duer,  658. 

But  when  a  party  notices  a  case  for  trial  and  places 
the  same  on  the  calendar  he  is  estopped  from  denying 
that  the  case  is  necessarily  on  the  calendar.  Hagar  v. 
Danforth,  8  How.  Pr.  448. 

§  47.  Stay  of  proceedings. 

Where  a  party  procures  a  stay  of  proceedings  until 
the  return  of  a  commission,  it  was  held  that  he  was  not 
entitled  to  term  fees  while  the  stay  was  in  effect.  Shu- 
felt  v.  Power,  3  How.  Pr.  89.  Nor  will  any  term  fees 
be  allowed  to  a  successful  party  in  an  action  who,  with- 
out the  consent  of  the  other  party,  procures  a  postpone- 
ment of  the  case  for  his  own  benefit.  Sipperly  v.  Warner, 
9  How.  Pr.  332. 

§  48.  Term  fees  allowed  although  notice  was  filed  by 
adversary. 

Where  an  action  has  been  noticed  for  trial,  the  party 
finally  successful  is  entitled  to  term  fees,  although  the 
notice  of  trial  was  given  by  the  opponent.  Andrews  v. 
Schnitzler,  48  Sup.  Ct.  173.  But  in  an  action  against 
two  defendants,  where  the  case  is  noticed  and  put  on 
by  one  of  the  defendants  only  as  to  whom  the  complaint 
is  dismissed,  the  other  defendant  is  not  entitled  to  a 
term  fee  on  obtaining  a  dismissal.  Tillspaugh  v.  Dick, 
8  How.  Pr.  33. 

Where  a  demurrer  is  noticed  for  argument  on  the 
general  calendar  and  is  then  ordered  to  be  heard  at  the 
Special  Term  for  the  same  month,  only  one  term  fee  can 
be  charged.  Comstock  v.  Halleck,  4  Sandf.  671. 


26  TAXATION  OF  COSTS 

§  49.  Fee  for  one  term  only  in  the  City  Court. 

In  the  City  Court  of  the  City  of  New  York  only  one 
term  fee  is  allowed.  So  held  on  a  motion  at  Special 
Term  for  a  retaxation  disallowing  ten  dollars  term  fee 
because  the  case  was  tried  at  the  same  term  it  was  placed 
on  the  calendar.  Wolkoff  v.  Silverstein,  L.  J.  Dec.  10, 


§  50.  No  costs  allowed  for  term  at  which  cause  is  tried 
or  disposed  of. 

The  term  fee  will  be  taxed  only  for  the  term  at  which 
the  case  is  necessarily  on  the  calendar,  excluding  the 
term  at  which  it  is  tried  or  otherwise  at  which  it  is  finally 
disposed  of.  So  that  where  the  case  is  discontinued  at 
the  first  term  at  which  the  case  has  been  on  the  calendar 
upon  payment  of  taxable  costs  to  date,  no  term  fee  is 
taxable.  Mossein  z>.  Empire  State  Surety  Co.,  117  A. 
D.  782. 

§  51.  Effect  of  amendment  of  pleadings  on  term  fees. 

An  amendment  of  a  pleading  changes  the  old  issues 
and  creates  new  ones.  So  that  where  a  case  had  been 
on  the  calendar  and  the  defendant  pursuant  to  an  order 
served  an  amended  answer,  the  court  held  that  this 
destroyed  the  old  issue,  and  inasmuch  as  the  case  was 
not  on  the  calendar  for  more  than  one  term  since  the 
creation  of  the  new  issue,  no  term  fee  should  be  allowed. 
Isaacs  v.  Kobre,  L.  J.  March  6,  1914.  For  the  same 
reason  four  months  term  fees  were  disallowed  although 
the  case  was  on  the  calendar  four  months,  exclusive 
of  the  term  at  which  it  was  disposed  of,  because  just 
before  the  case  was  referred  the  plaintiff  served  an 


TERM   FEES  27 

amended  complaint.  The  old  issue  was  thereupon  de- 
stroyed and  the  term  fees  that  had  previously  accrued 
could  not  be  allowed.  Herzfeld  v.  Reinich,  57  A.  D.  669; 
Mossein  v.  Empire  State  Surety  Co.,  117  A.  D.  782. 

§  52.  Adjournments  to  other  terms  on  consent. 

The  prevailing  party  in  an  action  is  entitled  to  costs 
of  the  terms  other  than  that  at  which  the  cause  was  tried 
although  the  cause  was  continued  from  term  to  term  on 
consent  of  the  parties.  Deyo  v.  Morss  et  al.,  21  Misc. 
497-  . 

§  53.  No  term  fee  allowed  in  Appellate  Term. 

The  Code  of  Civil  Procedure  does  not  provide  for  the 
allowance  of  term  fees  at  the  Appellate  Term  and  the 
court  cannot  therefore  allow  any  such  costs.  Feiber  v. 
Home  Silk  Mills,  L.  J.  Nov.  10,  1914.  Cassidy  v.  Mc- 
Farland,  139  N.  Y.  208. 

The  successful  party  is  entitled  to  tax  the  term  fees 
although  he  did  not  notice  the  cause  for  trial.  Vandever 
v.  Warren,  n  N.  Y.  Civ.  Pro.  Rep.  319. 

§  54.  Term  fees  in  other  appellate  courts. 

No  term  fee  is  allowable  on  appeal  from  an  order. 
Ennis  v.  Wilder,  14  Weekly  Dig.  211. 

Only  one  term  fee  can  be  charged  for  each  year  in  the 
Court  of  Appeals. 

Term  fees  are  not  taxable  for  terms  during  which  an 
appeal  is  improperly  on  the  calendar.  When  therefore 
the  findings  have  not  been  properly  made  and  signed, 
the  case  is  not  in  a  condition  for  the  consideration  of 
the  court  and  therefore  improperly  on  the  calendar. 


28  TAXATION  OF  COSTS 

Nobis  v.  Pollock,  18  Civ.  Pro.  Rep.  i.  So  also  when 
the  case  is  not  printed  or  ready  for  argument,  especially 
when  put  there  by  the  party  whose  duty  it  is  to  print 
the  case.  Van  Gelder  v.  Hallenbeck,  18  State  Rep.  19. 

Where  an  appeal  is  placed  on  the  calendar,  not  for 
argument,  but  to  have  it  dismissed,  a  term  fee  cannot 
be  taxed.  Newhall  v.  Appleton,  4  Mo.  Law  Bull.  6. 


CHAPTER  VI 

DISMISSAL  OF  COMPLAINT 

§  65.  Costs  are  statutory. 

66.  Trial  fee  allowed. 

67.  Costs  to  each  of  several  defendants. 

68.  Dismissal  as  to  one  of  several  defendants. 

§  65.  Costs  are  statutory. 

The  right  to  costs  on  dismissal  of  complaint  is  statu- 
tory and  not  within  the  discretion  of  the  court.  The 
judgment  is  a  final  one  and  terminates  the  action  and 
therefore  costs  should  be  allowed.  Van  Vliet  v.  Kanter, 
139  A.  D.  602. 

§  56.  Trial  fee  allowed. 

A  trial  fee  will  be  allowed  where  a  cause  has  been  regu- 
larly noticed  for  trial  and  placed  on  the  calendar  and, 
when  reached,  is  dismissed  on  failure  of  the  plaintiff  to 
appear  on  trial.  There  has  been  a  trial  of  the  action 
for  the  purpose  of  taxation.  Cole  v.  Lowery,  23  N.  Y. 
S.  674;  Pagano  v.  Lacobelli,  L.  J.  Jan.  22,  1914. 

§  57.  Costs  to  each  of  several  defendants. 

Where  several  defendants  appeared  by  separate  at- 
torneys and  each  moved  separately  to  dismiss  complaint 
which  was  granted,  each  defendant  is  entitled  to  a  sepa- 
rate bill  of  costs.  Jacobs  v.  Feinstein,  133  A.  D.  416. 

§  58.  Dismissal  as  to  one  of  several  defendants. 

Where  complaint  is  dismissed  as  to  one  defendant 
who  answers  separately,  such  defendant  is  not  entitled 

29 


30  TAXATION  OF  COSTS 

to  costs  as  a  matter  of  course,  provided  the  plaintiff  is 
entitled  to  costs  as  against  one  or  more  defendants. 
The  allowance  of  costs  is  in  the  discretion  of  the  court. 
Code  section  3229.  Ljungquist  v.  Hartmetz,  54  Misc. 
87.  So  held  in  a  Special  Term  decision  where  the  court 
said:  "This  is  peculiarly  a  case  in  which  the  court  should 
exercise  the  discretion  conferred  by  section  3229  of  the 
Code  and  withhold  costs  from  the  two  defendants  as  to 
whom  the  trial  terminated  favorably.  The  motion  to 
direct  the  clerk  to  tax  costs  is  denied."  Kesnerfl.  Green- 
field, L.  J.  March  31,  1915. 


CHAPTER  VII 

DISCONTINUANCE   OF  ACTION 

§  69.  Costs  to  date  are  statutory. 

60.  Costs  before  and  after  notice  of  trial  allowed. 

61.  No  trial  fee  nor  disbursements  allowed. 

62.  When  trial  fee  may  be  allowed. 

63.  When  no  term  fee  allowed. 

64.  When  allowed  without  costs. 
66.  Consolidation  of  actions. 

66.  No  judgment  for  costs  to  be  entered  on  discontinuance 
of  action. 

§  59.  Costs  to  date  are  statutory. 

The  defendant  is  entitled  to  all  costs  to  date  upon 
the  plaintiff's  discontinuance  of  his  action.  These  costs 
are  not  discretionary  with  the  court  but  are  regulated 
by  statute.  Claflin  v.  Robinson,  6  N.  Y.  S.  430;  Him- 
berg  v.  Rogers,  40  Misc.  190. 

§  60.  Costs  before  and  after  notice  of  trial  allowed. 

Where  therefore  an  action  is  discontinued  after  the 
issues  were  joined  and  cause  noticed  for  trial  defendant 
is  entitled  to  the  sum  of  twenty-five  dollars  as  costs  for 
before  notice  of  trial  and  after  notice  of  trial.  Rinaldo  v. 
Cowen,  22  N.  Y.  S.  1075. 

§  61.  No  trial  fee  nor  disbursements  allowed. 

No  trial  fee,  however,  will  be  allowed  the  defendant 
although  the  action  had  been  noticed  for  trial  and  placed 

31 


32  TAXATION  OF  COSTS 

on  the  calendar  and  just  as  it  was  about  to  be  moved 
for  trial  an  order  was  entered  discontinuing  the  action. 
Sutphen  v.  Lash,  10  Hun,  120. 

Nor  will  disbursements  for  the  entry  of  judgment, 
filing  a  transcript  or  for  issuing  execution,  be  allowed 
to  be  taxed  under  an  order  allowing  the  plaintiff  to  dis- 
continue the  action  upon  payment  of  costs.  Studwell 
v.  Baxter,  33  Hun,  331. 

§  62.  Where  trial  fee  may  be  allowed. 

A  trial  fee  may  be  allowed  the  defendant  where  the 
plaintiff  discontinues  his  cause  of  action  when  it  is 
marked  ready  for  trial  after  it  had  appeared  on  the  day 
calendar  and  answered  ready  prior  to  the  date  of  dis- 
continuance. Moline  Auto.  Co.  v.  De  Lamater-B.  Auto. 
Co.,  L.  J.  March  31,  1915;  Duprey  v.  Phcenix,  i  Abb. 
N.  C.  133,  note. 

§  63.  When  no  term  fee  allowed. 

Where  a  case  is  discontinued  at  the  same  term  at 
which  the  case  has  been  placed  on  the  calendar  upon 
payment  of  taxable  costs,  no  term  fee  is  taxable.  Evans 
•o.  Silberman,  7  A.  D.  139. 

§  64.  When  allowed  without  costs. 

An  order  of  discontinuance  may  be  allowed  without 
costs  if  entered  before  appearance  of  defendant.  The 
fact  that  defendant  retained  an  attorney  is  not  suffi- 
cient. Averill  v.  Patterson,  10  N.  Y.  500;  Hallet  v. 
Hallet,  10  Misc.  304;  Schenck  v.  Fancher,  14  How.  Pr. 

95- 

But  an  unexpected  decision  of  the  Court  of  Appeals 


DISCONTINUANCE  OF  ACTION  33 

which  renders  further  prosecution  of  the  case  useless 
is  no  ground  for  exemption  from  costs  which  accrued 
in  the  action.  Agar  v.  Tibbets,  56  Hun,  272. 

§  65.  Consolidation  of  actions. 

By  consolidating  two  actions  the  original  actions  are 
discontinued  and  only  the  consolidated  action  remains, 
and  the  successful  party  will  be  entitled  to  tax  only  the 
costs  of  the  consolidated  action,  unless  the  right  to  tax 
the  costs  of  the  discontinued  action  is  reserved  in  the 
order  directing  the  consolidation.  Hicox  v.  New  Yorker 
Staats  Zeitung,  23  N.  Y.  Civ.  Pro.  Rep.  87. 

§  66.  No  judgment  for  costs  to  be  entered  on  discon- 
tinuance of  action. 

On  motion  for  leave  to  discontinue  either  at  Special 
Term  or  Trial  Term,  an  absolute  order  of  discontinuance 
is  unauthorized  and  a  judgment  for  such  costs  should 
not  be  entered.  The  court  can  only  impose  costs,  but 
the  plaintiff  is  free  either  to  discontinue  and  pay  costs, 
or  go  on  with  the  action.  Hyde  v.  Anderson,  112  A.  D. 
76;  Anderson  v.  A.  E.  Norton,  Inc.,  158  N.  Y.  S.  152. 


CHAPTER  VIII 

DEMURRERS   AND   INTERLOCUTORY   JUDGMENTS 

67.  Statutory  provisions. 

68.  When  entitled  to  allowance  of  costs. 

69.  When  nominal  damages  are  demanded. 

70.  As  a  contested  motion. 

71.  As  a  trial  of  an  issue  of  law. 

72.  When  demurrer  is  sustained  or  overruled  in  whole. 

73.  Demurrer   to   one    of   several    defenses   or  counter- 

claims. 

74.  On  entry  of  interlocutory  judgment. 

75.  Disbursements. 

76.  Full  bill  allowed  on  failure  to  plead  over. 

77.  Costs  of  interlocutory  judgment  contained  in  final  judg- 

ment. 

67.  Statutory  provisions. 

Section  3251,  subdivision  3,  paragraph  4,  provides: 
"For  the  trial  of  an  issue  of  law,  twenty  dollars." 
Section  3232  provides: — 

Where  an  issue  of  law  and  an  issue  of  fact  are 
joined,  between  the  same  parties  to  the  same  action, 
and  the  issue  of  fact  remains  undisposed  of,  when 
an  interlocutory  judgment  is  rendered  upon  the 
issue  of  law;  the  interlocutory  judgment  may,  in  the 
discretion  of  the  court,  deny  costs  to  either  party, 
or  award  costs  to  the  prevailing  party,  either  ab- 
solutely, or  to  abide  the  event  of  the  trial  of  the 
issue  of  fact. 

34 


DEMURRERS  AND  INTERLOCUTORY  JUDGMENTS    35 

§  68.  When  entitled  to  allowance  of  costs. 

A  party  is  not  entitled  to  costs  on  demurrer  when  he 
succeeds  only  as  to  one  of  the  grounds  and  fails  as  to  the 
others.  Petrakion  v.  Arbeely,  23  Civ.  Pro.  Rep.  183. 
Nor  are  costs  allowed  to  either  party  when  the  demurrer 
is  sustained  only  in  part  and  overruled  hi  part  Benner 
v.  Benner,  12  N.  Y.  S.  472. 

The  right  to  costs  is  absolute  when  the  demurrer  to 
the  pleading  is  disposed  of,  except  as  provided  for  in 
section  3232  of  the  Code.  Tallmann  v.  Bernhard,  75 
Hun,  30. 

Costs  of  a  motion  to  overrule  a  demurrer  cannot  be 
charged  in  addition  to  the  costs  of  a  trial  of  an  issue  of 
law  on  the  disposition  of  the  demurrer.  McWilliams  v. 
Dayton,  27  Misc.  828. 

§  69.  When  nominal  damages  are  demanded. 

Where  the  demand  in  a  complaint  is  for  nominal  dam- 
ages, the  costs  allowed  on  the  overruling  of  a  demurrer 
by  defendant  to  the  complaint,  are  taxable  by  defendant 
under  section  3228,  subdivisions  4  and  5,  and  section  3229 
of  the  Code,  providing  that  where  plaintiff  recovers  less 
than  fifty  dollars  defendant  is  entitled  to  tax  costs. 
Roome  v.  Jennings,  3  Misc.  413. 

§  70.  As  a  contested  motion. 

A  demurrer  may  be  brought  on  for  hearing  either  as  a 
contested  motion  or  as  a  trial  of  an  issue  of  law. 

Where  it  is  brought  on  as  a  contested  motion  under 
section  976  of  the  Code  or  for  judgment  on  the  pleadings 
under  section  547  of  the  Code,  only  $10  motion  costs 
should  be  allowed.  When  final  judgment  is  entered  costs 


36  TAXATION  OF  COSTS 

before  notice  of  trial  and  motion  costs  are  taxable. 
Kramer  v.  Earth,  79  Misc.  80.  Where  a  demurrer  is 
disposed  of  on  motion  for  judgment  on  the  pleadings 
under  section  547  of  the  Code,  costs  after  notice  of  trial 
and  a  trial  fee  are  not  taxable.  Singer  Mfg.  Co.  v. 
Granite  Spring  W.  Co.,  67  Misc.  575;  Keyes  v.  Lestershire 
Heights  Ry.  Co.,  158  N.  Y.  S.  617. 

§  71.  As  a  trial  of  an  issue  of  law. 

When  a  demurrer  comes  on  to  be  heard  as  an  issue  of 
law  and  the  court  determines  that  the  successful  party  is 
entitled  to  costs  such  costs  are  statutory  as  provided  for 
in  section  3251  of  the  Code,  and  the  court  has  no  power 
to  fix  any  different  amount  such  as  $10.  Vogt  v.  Oet- 
tinger,  88  Hun,  52. 

So  that  when  a  demurrer  to  the  entire  complaint  in 
a  common-law  action  is  sustained  and  leave  is  given  to 
the  plaintiff  to  amend,  the  defendant  is  entitled  as  a 
matter  of  course  on  entering  the  interlocutory  judgment, 
to  $20  costs  for  trial  of  an  issue  of  law  and  $15  for  all 
proceedings  after  notice  of  trial  (section  3232  of  Code). 
Turkheim  v.  Thomas,  113  A.  D.  123.  Costs  before  no- 
tice of  trial  is  not  taxable.  Louts  v.  Empire  State  In- 
surance Co.,  75  Hun,  364. 

§  72.  When  demurrer  is  sustained  or  overruled  in  whole. 
Where  an  order  is  made  sustaining  or  overruling  a 
demurrer  to  the  whole  complaint  in  a  common-law  action 
the  successful  party  is  entitled  to  costs  after  notice  of 
trial,  trial  fee  and  disbursements  as  a  matter  of  law. 
Marsh  v.  Graham,  19  Misc.  263;  Garret  v.  Wood,  61 
A.  D.  294. 


DEMURRERS  AND  INTERLOCUTORY  JUDGMENTS    37 

Where  the  demurrer  to  complaint  is  sustained,  the 
defendant  is  entitled  to  costs,  and  if  there  are  several 
defendants  not  united  in  interest,  each  is  entitled  to  a 
separate  bill  of  costs,  as  of  right  Olifier  v.  Belmont,  24 
Civ.  Pro.  Rep.  408. 

But  such  costs  do  not  include  costs  before  notice  of 
trial,  nor  fees  for  entering  judgment,  satisfaction  piece, 
transcript  and  filing  of  judgment,  or  sheriff's  fees  on 
execution.  Thompson  v.  Stanley,  22  Civ.  Pro.  Rep. 
348. 

§  73.  Demurrer  to  one  of  several  defenses  or  counter- 
claims. 

Where  there  is  a  demurrer  to  one  of  several  defenses 
only  twenty  dollars  as  an  argument  fee  is  allowable. 
Full  costs  will  not  be  allowed  because  the  entire  defense 
is  not  disposed  of.  Basso  v.  Basso,  19  Abb.  N.  C.  173. 
Similarly  upon  an  allowance  of  a  demurrer  to  one  of 
several  counterclaims  with  leave  to  amend  on  payment 
of  costs,  only  twenty  dollars  for  the  trial  of  an  issue  of 
law  should  be  allowed,  full  costs  to  be  taxed  on  the  final 
determination  of  the  action.  Kniering  v.  Lennon,  3  Misc. 
247. 

Where  a  demurrer  is  interposed  to  the  entire  complaint 
or  answer  with  leave  to  amend  and  the  party  elects  not 
to  avail  itself  of  the  privilege  and  fails  to  amend,  final 
judgment  should  be  entered  for  full  costs.  Garret  v. 
Wood,  61  A.  D.  294. 

§  74.  On  entry  of  interlocutory  judgment. 

Upon  entry  of  an  interlocutory  judgment  the  success- 
ful party  is  entitled  to  tax  costs  after  notice  of  trial,  a 


38  TAXATION  OF  COSTS 

trial  fee  of  an  issue  of  law  and  disbursements.  Costs 
before  notice  of  trial  is  not  allowed.  Hill  v.  Muller,  53 
Misc.  262;  Garret  v.  Wood,  61  A.  D.  294.  Similarly 
on  sustaining  a  demurrer  to  an  answer,  plaintiff  is  not 
entitled  to  costs  of  proceedings  before  notice  of  trial. 
Penfield  v.  City  of  New  York  et  al,  102  N.  Y.  S. 
784. 

On  an  affirmance  of  an  interlocutory  judgment  on  a 
demurrer,  the  successful  party  is  entitled  to  the  taxation 
of  $40  only  for  argument  of  appeal.  Hill  v.  Muller  et  al., 
53  Misc.  262. 

§  75.  Disbursements. 

Disbursements  allowed  in  an  interlocutory  judgment 
are  those  connected  with  the  argument  and  entry  of 
judgment,  but  does  not  include  service  of  summons  and 
complaint  and  sheriff's  fees  on  execution.  Louis  v.  Em- 
pire State  Insurance  Co.,  75  Hun,  364;  Thompson  v. 
Stanley,  22  Civ.  Pro.  Rep.  348. 

§  76.  Full  bill  allowed  on  failure  to  plead  over. 

Where  a  demurrer  has  been  either  sustained  or  over- 
ruled and  leave  having  been  granted  to  plead  over  and 
the  party  fails  to  do  so,  final  judgment  may  be  entered 
with  a  full  bill  of  costs.  Crasto  v.  White,  52  Hun,  473; 
Garret  v.  Wood,  61  A.  D.  294. 

§  77.  Costs    of    interlocutory    judgment    contained    in 
final  judgment. 

Although  the  costs  awarded  in  an  interlocutory  judg- 
ment are  absolute,  they  are  not  collectible  by  execution 
(section  3232  and  section  779  of  the  Code).  The  judg- 


DEMURRERS  AND  INTERLOCUTORY  JUDGMENTS     39 

ment,  therefore,  should  not  provide  that  execution  should 
be  issued  for  their  collection.  They  should  be  included 
in  the  final  judgment  if  the  party  is  finally  successful, 
or  set  off  in  the  final  judgment  if  the  party  is  unsuccess- 
ful. Cassvoy  v.  Pattison,  101  A.  D.  130. 


CHAPTER  IX 

MOTIONS   AND    SPECIAL   PROCEEDINGS 

§  78.  Motion  costs  allowed  in  the  discretion  of  the  court. 

79.  When  "with  costs"  does  not  include  disbursements. 

80.  Costs  in  special  proceedings. 

81.  Must  be  a  final  decree  or  order  in  special  proceedings. 

82.  When  §  3240  is  applicable. 

§  78.  Motion  costs  allowed  in  the  discretion  of  the  court. 

It  is  within  the  discretion  of  the  court  either  to  allow 
or  disallow  motion  costs.  The  amount  allowed  is  fixed 
by  statute,  in  section  3251,  subdivision  3,  par.  9,  of  the 
Code  of  Civil  Procedure,  wherein  it  provides  that  the  sum 
allowed  is  to  be  "fixed  by  the  court  or  judge  not  exceed- 
ing $10  besides  necessary  disbursements  for  printing  and 
referee's  fees." 

But  costs  on  a  motion  for  a  new  trial  on  newly  dis- 
covered evidence  is  regulated  by  subdivision  4,  of  sec- 
tion 3251  of  the  Code,  and  is  the  same  as  costs  on  an 
appeal. 

Motion  costs  may  be  allowed  to  abide  the  event.  The 
allowance  thereof  must  be  set  forth  in  the  order. 

§  79.  When  "with  costs"  does  not  include  disburse- 
ments. 

Section  3236  of  the  Code  of  Civil  Procedure  provides 
that  "Costs  upon  a  motion  in  an  action,  where  the  costs 

are  not  specially  regulated  in  this  act,  or  upon  a  reference 

40 


MOTIONS  AND  SPECIAL  PROCEEDINGS          41 

made  may  be  awarded,  *  *  *  in  the  discretion  of 
the  court  or  judge."  A  motion  is  an  application  in  an 
action,  and  motion  costs  are  entirely  independent  of 
those  allowed  in  an  action  upon  final  judgment.  Sub- 
division 3,  of  section  3251  of  the  Code  limits  the  amount 
of  motion  costs  that  may  be  allowed.  Matter  of  Peter- 
son, 94  A.  D.  143. 

An  order  that  is  merely  incidental  to  a  proceeding  is 
not  a  final  order  and  costs  allowed  therein  are  motion 
costs  within  section  3236  and  only  $10  motion  costs  are 
allowable  unless  the  court  expressly  awards  disburse- 
ments. Matter  of  Babcock,  86  A.  D.  563.  Similarly 
on  an  order  of  reference  under  section  3236,  the  utmost 
that  could  be  allowed  is  $10  and  an  allowance  for  print- 
ing. "While  the  court  was  not  required  to  fix  the  amount 
it  could  have  directed  the  clerk  to  tax  them.  But  without 
such  a  direction  the  clerk  could  not  tax  them."  Cassidy 
v.  McFarland,  139  N.  Y.  201.  So  also  on  motion  made, 
an  order  appointing  a  commission  does  not  determine 
the  rights  of  the  parties  or  end  the  proceeding  and  there- 
fore is  not  a  final  order.  It  is  a  decision  of  a  motion 
made  in  the  progress  of  the  proceeding  and  the  costs 
awarded  are  motion  costs  and  not  those  in  a  special 
proceeding  under  section  3240  of  the  Code.  Matter  of 
VanDusen,  132  A.  D.  592. 

§  80.  Costs  in  special  proceedings. 

Section  3240  reads: 

Costs  in  a  special  proceeding,  instituted  in  a  court 
of  record,  or  upon  an  appeal  in  a  special  proceeding 
taken  to  a  court  of  record,  where  the  costs  thereof 
are  not  specially  regulated  in  this  act,  may  be 


42  TAXATION  OF  COSTS 

awarded  to  a  party  in  the  discretion  of  the  court, 
at  the  rates  allowed  for  similar  services,  in  an  action 
brought  in  the  same  court,  or  an  appeal  from  a  judg- 
ment taken  to  the  same  court  and  in  like  manner. 

§  81.  Must  be  a  final  decree  or  order  in  special  pro- 
ceedings. 

This  section  applies  to  final  orders  in  special  proceed- 
ings, and  the  costs  are  to  be  ascertained  by  taxation. 
It  is  not  necessary  to  specify  costs  and  disbursements, 
as  under  section  3256  costs  carries  disbursements  with 
it.  Matter  of  Babcock,  86  A.  D.  563. 

An  award  of  costs  upon  a  judgment  or  upon  a  final 
decree  or  order  in  special  proceedings  carries  taxable  dis- 
bursements. Matter  of  Perry,  131  A.  D.  284;  Matter 
of  Bensel,  143  A.  D.  962. 

§  82.  When  section  3240  is  applicable. 

Although  a  statute  is  silent  as  to  costs  in  proceedings 
for  opening,  extending,  and  grading  streets,  there  is 
authority  under  section  3240  of  the  Code  to  award  costs 
to  property  owners  upon  confirmation  of  the  report  by 
the  commissioners.  Matter  of  School  Street  Nos.  1-2, 
162  A.  D.  158.  The  section  applies  similarly  in  proceed- 
ings for  the  recovery  of  damages  resulting  from  changing 
the  grade  of  streets.  Bley  v.  Village  of  Hamburg,  84 
A.  D.  23;  Matter  of  Brady,  145  A.  D.  49. 

In  proceedings  to  acquire  title  to  land  instituted  under 
the  general  Railroad  Act,  the  court  may  in  its  discretion 
under  section  3240  of  the  Code,  award  costs  to  any  party 
at  the  rates  allowed  for  similar  services  in  an  action 
brought  in  that  court.  Where  no  issue  had  been  joined 


MOTIONS  AND  SPECIAL  PROCEEDINGS          43 

and  no  question  of  fact  had  been  raised  or  tried,  the 
court's  disallowance  of  a  trial  fee  was  correct.  Matter 
of  New  York  L.  &  W.  R.  Co.,  26  Hun,  592. 

Where  the  compensation  awarded  to  a  landowner  by 
commissioners  in  condemnation  proceedings  under  sec- 
tion 3372  of  the  Code,  exceeds  the  amount  offered  by 
the  corporation,  the  landowner  is  entitled  to  same  costs 
as  a  successful  defendant  in  the  Supreme  Court  under 
section  3251  of  the  Code,  viz. : — $10  before  notice  of  trial, 
$15  after  notice  of  trial,  $30  trial  fee,  and  for  a  trial 
occupying  more  than  two  days  $10  additional.  Matter 
of  Brooklyn  Union  El.  R.  R.  Co.,  176  N.  Y.  213. 

Section  3240  applies  also  where  a  proceeding  is  in- 
stituted to  have  a  liquor  tax  certificate  revoked,  and  an 
answer  is  interposed.  Matter  of  Young,  66  Misc.  216. 
Where  a  warrant  of  seizure  was  executed.  Farley  v.  16 
Bottles  of  Champagne,  153  A.  D.  592.  In  a  proceeding 
to  remove  a  commissioner  by  the  mayor.  O'Neil  v. 
Mansfield,  47  Misc.  516.  So  also  in  a  proceeding  to  dis- 
tribute surplus  moneys  arising  from  a  sale  upon  a  fore- 
closure of  a  mortgage.  Syracuse  Savings  Bank  v.  Stokes, 
71  Misc.  508.  Not,  however,  in  a  proceeding  for  the  sale 
of  infant's  property  which  is  regulated  by  section  2348. 
Matter  of  Molinari,  82  Misc.  663.  A  decree  of  a  surrogate 
vacating  or  setting  aside  the  assessment  of  a  transfer  tax 
made  by  him  is  a  final  order  in  a  special  proceeding  and 
the  costs  awarded  are  the  same  as  on  an  appeal  from  a 
judgment  including  costs  and  disbursements.  Matter  of 
Babcock,  86  A.  D.  563. 


CHAPTER  X 

COSTS    FOR   PROCEEDINGS   AFTER  THE   GRANTING   OF  AND 
BEFORE  NEW  TRIAL 

§  83.  Statutory  provisions. 

84.  Where  verdict  is  set  aside  and  new  trial  ordered. 
86.  Verdict  set  aside  because  of  misconduct  of  jury. 

86.  Reversal  of  judgment  by  appellate  court. 

87.  On  opening  an  inquest  no  costs  allowed. 

88.  Nor  after  disagreement  of  jury. 

89.  Restoring  cause  to  day  calendar. 

90.  Item  taxable  more  than  once. 

§  83.  Statutory  provisions. 

Under  the  provisions  of  section  3251,  subdivision  3, 
par.  10,  of  the  Code,  "where  a  new  trial  is  had  pursuant 
to  an  order  granting  the  same,"  $25  is  allowed  for  all 
proceedings  after  the  granting  thereof,  and  before  the 
new  trial. 

§  84.  Where  verdict  is  set  aside  and  new  trial  ordered. 

Upon  the  rendition  of  a  verdict  for  the  plaintiff  at  the 
close  of  the  trial,  the  defendant  moved  without  opposi- 
tion by  the  plaintiff,  to  set  the  verdict  aside  which  was 
granted.  On  the  second  trial  a  verdict  was  again  ren- 
dered for  the  plaintiff.  The  court  held  that  the  plaintiff 
was  entitled  to  costs  of  both  trials  as  well  as  to  $25  as 
provided  for  in  section  3251,  subdivision  3,  of  the  Code, 
where  a  new  trial  is  had  pursuant  to  an  order  granting 
the  same.  Capozzi  v.  Bulkley,  156  A.  D.  55. 

44 


COSTS  FOR  PROCEEDINGS  BEFORE  NEW  TRIAL     45 

§  85.  Verdict  set  aside  because  of  misconduct  of  jury. 

Where  a  jury  brings  in  a  verdict  and  the  same  is  set 
aside  because  of  the  misconduct  of  the  jury,  and  a  new 
trial  is  ordered  by  the  court,  the  successful  party  is  en- 
titled to  tax  $25  costs  for  proceedings  after  the  granting 
of  and  before  a  new  trial.  Hudson  v.  Erie  R.  R.  Co.,  57 
A.  D.  98. 

§  86.  Reversal  of  judgment  by  appellate  court. 

A  judgment  having  been  reversed  by  the  Appellate 
Term  leave  to  appeal  to  the  Appellate  Division  was 
obtained  and  upon  stipulation  the  appellate  court  heard 
the  argument,  and  after  modifying  the  original  judgment, 
judgment  absolute  was  given  to  the  plaintiff.  The  clerk 
on  taxation  of  bill  of  costs  allowed  $25  because  the 
Appellate  Term  had  reversed  the  judgment  and  ordered 
a  new  trial.  On  motion  to  review  the  clerk's  taxation, 
the  court  at  Special  Term  of  the  City  Court  held  that 
"The  costs  as  taxed  by  the  clerk  have  the  unqualified 
approval  of  the  court."  H.  G.  Vogel  Co.  v.  Reinhardt, 
L.  J.  Dec.  ist,  1915. 

§  87.  On  opening  an  inquest  no  costs  allowed. 

The  trial  of  an  action  after  opening  an  inquest,  is  not 
a  new  trial  within  the  meaning  of  the  section  of  the  Code. 
Wessels  v.  Carr,  22  Abb.  N.  C.  464. 

§  88.  Nor  after  a  disagreement  of  jury. 

A  new  trial  ordered  after  a  disagreement  of  a  jury  is 
not  an  order  within  the  provisions  of  the  section  allowing 
costs.  Hamilton  v.  Wentworth,  27  N.  Y.  Sup.  Ct.  Rep. 
654.  Held  contra  in  Kiimmer  v.  Christopher  T.  Street 
Co.,  33  N.  Y.  S.  581.  However  the  court  in  Hudson  v. 


46  TAXATION  OF  COSTS 

Erie  R.  R.  Co.,  57  A.  D.  98,  seems  to  be  in  accord  with 
Hamilton  v.  Wentworth,  supra. 

§  89.  Restoring  case  to  day  calendar. 

An  order  restoring  a  cause  to  the  day  calendar  for 
trial  at  a  subsequent  term  after  the  withdrawal  of  a 
juror,  is  not  considered  an  allowance  of  a  new  trial 
"pursuant  to  an  order  of  the  court  granting  the  same" 
so  as  to  tax  $25  costs  for  proceedings  after  the  granting 
of  and  before  a  new  trial.  Bloch  v.  Linsley,  40  Misc.  184. 

§  90.  Item  taxable  more  than  once. 

There  seems  to  be  no  limit  to  the  number  of  times  this 
item  may  be  taxed.  It  depends  solely  on  the  number  of 
new  trials  that  were  had  "pursuant  to  an  order  of  the 
court"  granting  them.  Levine  v.  Klein,  66  Misc.  571. 


CHAPTER  XI 

NEW   TRIAL  UPON   NEWLY  DISCOVERED  EVIDENCE 

§  91.  Costs  allowed  are  the  same  as  on  an  appeal. 

92.  Motion  is  made  on  a  case. 

93.  What  a  case  consists  of. 

94.  Entitled  to  costs  of  motion  in  addition  to  costs  on  appeal 

from  judgment. 

95.  Appeal  costs  follow  as  a  matter  of  course. 

§  91.  Costs  allowed  are  the  same  as  on  an  appeal. 

Upon  a  motion  for  a  new  trial  upon  a  case,  or  an  ap- 
plication for  judgment  on  a  special  verdict,  either  party 
is  entitled  to  the  same  sum  as  upon  an  appeal:  $20 
before  argument  and  $40  for  argument.  Section  3251, 
subdivision  4  of  the  Code. 

§  92.  Motion  is  made  on  a  case. 

Where  a  motion  is  made  for  a  new  trial  upon  newly 
discovered  evidence,  a  case  must  be  made  and  settled 
under  section  997  of  the  Code,  and  where  the  motion  is 
denied,  the  successful  party  is  entitled  to  the  same  costs 
as  on  an  appeal.  Davis  v.  Grand  Rapids  Fire  Ins.  Co., 
5  A.  D.  36. 

§  93.  What  a  case  consists  of. 

A  motion  is  made  on  a  case  where  it  is  made  on  "the 
settled  case  herein"  and  on  affidavits  and  papers  thereto- 
fore served.  Perkins  z>.  Brainard  Quarry  Co.,  n  Misc. 
337- 

47 


48  TAXATION  OF  COSTS 

§  94.  Entitled  to  costs  of  motion  in  addition  to  costs 

on  appeal  from  judgment. 

The  prevailing  party  on  a  motion  of  this  kind  is  en- 
titled to  full  costs  of  appeal  although  he  is  also  entitled 
to  full  costs  on  a  simultaneous  appeal  from  the  judgment. 
Pease  v.  Perm.  R.  R.  Co.,  137  A.  D.  459,  aff'd  in  203  N.  Y. 
573- 

§  95.  Appeal  costs  follow  as  a  matter  of  course. 

Where  upon  an  appeal  from  an  order  of  the  City  Court 
granting  plaintiff  a  new  trial  on  the  ground  of  newly  dis- 
covered evidence,  the  order  is  reversed  with  costs  and 
disbursements,  the  defendants  are  entitled  as  a  matter 
of  course  to  tax  $20  before  argument  and  $40  for  argu- 
ment. Brennan  v.  Joline,  70  Misc.  537. 


CHAPTER  XII 

TAXATION  OF  COSTS  PREVIOUSLY  PAID  AS   TERMS 

§  96.  Costs  paid  as  terms  on  amendment  of  pleadings  cannot 
be  taxed  again. 

97.  Items  of  costs  paid  as  terms  allowed  to  be  taxed  again 

by  successful  party. 

98.  Where  terms  allowed  is  an  amount  equal  to  costs. 

99.  Payment  of  costs  on  opening  default. 

100.  Costs  accrued   before   amendment   of   pleading    not 
taxable  on  final  judgment. 

§  96.  Costs  paid  as  terms  on  amendment  of  pleadings 
cannot  be  taxed  again. 

The  courts  are  at  variance  as  to  whether  costs  that 
have  been  paid  by  a  party  under  an  order  permitting 
an  amendment  to  the  pleadings  upon  payment  of  taxable 
costs  to  date,  can  again  be  taxed  by  the  party  finally 
successful  in  the  action. 

In  Cahill  v.  Mayor,  it  was  held  that  where  costs  are 
awarded  against  a  party  as  a  condition  of  leave  to  file 
an  amended  pleading,  the  party  receiving  the  costs  can- 
not again  tax  the  same  on  finally  succeeding  in  the  action. 
Cahill  v.  Mayor,  50  A.  D.  276.  Nor  can  either  party 
again  tax  the  same  items  of  costs  that  have  been  paid 
by  the  defendant  pursuant  to  an  order  to  pay  costs  to 
date  for  leave  granted  to  him  to  amend  his  pleading. 
The  order  is  a  final  adjudication  that  the  items  belong 
to  the  plaintiff.  Marx  v.  Gross,  22  N.  Y.  S.  387;  Seneca 
National  Bank  v.  Hawley,  32  Hun,  288.  The  theory  is 

49 


5o  TAXATION  OF  COSTS 

that  the  imposition  of  costs  on  the  granting  of  a  favor 
constituted  an  adjudication  that  such  items  of  costs 
belong  to  the  party  to  whom  they  are  directed  to  be  paid 
and  when  once  paid  cannot  again  be  taxed  by  either 
party. 

§  97.  Items  of  costs  paid  as  terms  allowed  to  be  taxed 
again  by  successful  party. 

The  decisions  more  generally  followed,  however,  hold 
that  the  costs  allowed  are  to  be  considered  merely  as  a 
measure  of  compensation  awarded  to  a  party  for  his 
additional  labor,  and  delay  because  of  the  favor  granted 
to  his  adversary.  So  that  where  the  plaintiff  as  a  condi- 
tion of  being  allowed  to  amend  his  complaint  before  trial 
is  required  to  pay  costs  up  to  the  time  of  his  application , 
he  must  be  allowed  to  tax  again  such  items  if  he  after- 
wards succeeds  in  obtaining  judgment.  Dovale  v. 
Ackerman,  24  Abb.  N.  C.  214;  Havemeyer  v.  Havemeyer, 
48  Superior  Ct.  104. 

The  reasoning  is  well  stated  in  Havemeyer  v.  Have- 
meyer (supra),  "The  order  having  been  made  during  the 
pendency  of  the  issues  and  the  exercise  of  the  discretion 
of  the  court,  and  in  respect  to  a  matter  of  pleading  merely, 
it  contemplated  not  a  final  and  complete  disposition  of 
all  the  costs  that  had  accrued  up  to  that  time  as  such, 
but  a  compensation  to  the  plaintiffs  for  the  amendment, 
to  be  measured  by  the  taxable  costs  to  which  they  would 
have  been  entitled  in  case  then  and  there  they  had  suc- 
ceeded." 

Likewise  it  was  held  that  the  payment  of  costs  paid 
by  defendant  as  a  condition  of  being  allowed  to  amend 
his  answer  did  not  preclude  the  plaintiff  who  was  finally 


TAXATION  OF  COSTS  PREVIOUSLY  PAID  AS  TERMS     5 1 

successful  from  again  taxing  such  items  of  costs.  Stan- 
Cash  Car  Co.  v.  Reinhardt,  6  Misc.  365 ;  Cohn  v.  Huson, 
3  How.  Pr.  N.  S.  130. 

Thus  also  in  an  action  where  the  defendant  as  a  con- 
dition for  leave  to  amend  his  answer,  was  ordered  to  pay 
to  the  plaintiff  costs  and  disbursements  to  date,  and  has 
paid  the  same,  the  plaintiff,  although  successful  at  the 
trial,  was  allowed  again  to  tax  the  costs.  The  court  held 
that  when  the  amended  answer  was  allowed  the  issues, 
presented  were  changed  and  from  that  time  on  the  plain- 
tiff was  compelled,  to  proceed  as  if  he  had  at  that  time 
instituted  a  new  action.  For  that  reason  he  was  entitled 
to  tax  the  items  of  costs  before  notice  of  trial,  costs  after 
notice  of  trial,  and  a  term  fee  as  well  as  costs  of  all  sub- 
sequent proceedings.  As  to  disbursements,  however,  the 
court  disallowed  a  relaxation  of  them.  Disbursements 
are  allowed  simply  for  reimbursing  the  successful  party 
for  moneys  expended  by  him,  and  when  once  paid  cannot 
again  be  taxed.  Grant  v.  Pratt  &  Lambert,  no  A.  D. 
149. 

This  case  was  followed  in  an  action  that  came  on  for 
trial  on  three  different  occasions.  After  the  first  trial 
the  plaintiff  moved  to  amend  his  answer.  The  motion 
was  granted  on  payment  of  taxable  costs  to  date.  Costs 
were  paid  and  complaint  amended.  At  the  second  trial 
the  cause  was  sent  from  the  short  cause  calendar  back 
to  the  general  calendar,  and  on  the  third  trial  the  case 
was  dismissed.  The  court  held  "that  notwithstanding 
the  fact  that  the  costs  have  once  been  paid,  the  clerk 
erred  in  refusing  again  to  tax  the  same  upon  the  defendant 
finally  succeeding  in  the  action."  The  court  allowed 
$10  costs  before  notice  of  trial,  $10  term  fees,  and  $15 


52  TAXATION  OF  COSTS 

after  notice  of  trial.    H.  G.  Vogel  Co.  v.  Reinhardt,  89 
Misc.  606. 

§  98.  Where  terms  allowed  is  an  amount  equal  to  costs. 

It  will  be  noticed  that  the  costs  allowed  to  be  taxed 
over  again  were  the  items  of  costs  allowed  by  statute  to 
the  successful  party.  These  decisions  have  no  reference 
to  the  allowance  of  an  amount  equal  to  costs  or  an  al- 
lowance of  a  lump  sum.  Where  the  payment  allowed  for 
a  favor  granted  is  a  sum  equal  to  the  costs  to  date,  with- 
out being  designated  as  such,  the  party  receiving  them 
may  tax  full  costs  in  the  event  of  his  success  in  the  action. 
Schmidt  v.  Mackie,  9  Weekly  Dig.  288. 

In  Lennon  v.  Mclntosh,  19  Abb.  N.  C.  175,  the  de- 
fendant was  permitted  to  open  default  taken  at  Trial 
Term  on  payment  of  $20  costs  and  certain  witness  fees. 
The  plaintiff  on  recovery  on  a  subsequent  trial  was  en- 
titled to  tax  a  full  bill  of  costs  without  deducting  the  $20 
paid  to  open  the  default. 

§  99.  Payment  of  costs  on  opening  default. 

The  same  rule  does  not  apply  to  the  taxation  of  costs 
ordered  to  be  paid  on  opening  a  default  and  allowing 
a  party  to  come  in  and  defend.  There  is  no  change  of 
issue  as  is  occasioned  by  an  amendment  of  pleadings. 
The  court  merely  allows  the  party  to  come  in  and  try 
the  issues  already  raised  by  the  pleadings.  The  costs 
are  allowed  for  the  favor  granted,  and  a  retaxation  of 
them  against  the  defaulting  party  on  the  final  judgment 
will  not  be  permitted.  So  held  where  a  plaintiff  failed  to 
appear  when  the  case  was  called  and  the  case  was  dis- 
missed with  costs.  A  motion  was  made  by  the  plaintiff 
to  open  the  default  which  was  granted  upon  payment  of 


TAXATION  OF  COSTS  PREVIOUSLY  PAID  AS  TERMS     53 


costs  which  were  paid.  When  the  cause  appeared 
again  on  the  calendar  the  plaintiff  again  defaulted  and  the 
complaint  was  dismissed.  Upon  the  second  taxation  of 
costs  the  court  held  that  if  the  items  of  costs  after  no- 
tice of  trial  and  a  trial  fee  for  the  first  trial  formed  part 
of  the  $65  heretofore  taxed  and  paid,  such  items  cannot 
be  retaxed.  Andrew  v.  Cross,  17  Abb.  N.  C.  92. 

Similarly  where  complaint  was  dismissed  and  default 
opened  on  payment  of  costs  which  were  paid.  The  de- 
fendant finally  succeeded  in  the  action  and  the  bill  of 
costs  presented  was  taxed  allowing  two  trial  fees,  twenty- 
five  dollars  for  all  proceedings  after  granting  of,  and 
before  new  trial  and  disbursements  taxed  upon  dismissal 
of  complaint  and  upon  final  trial.  On  motion  for  re- 
taxation  it  was  held  that  the  costs  should  be  "retaxed 
so  as  to  disallow  $30  trial  fee,  and  $25  for  new  trial,  and 
the  disbursements  for  the  service  of  a  summons,  sheriff's 
fees  on  execution  and  for  filing  of  a  note  of  issue."' 
Harris  v.  Wiener,  L.  J.  Nov.  20,  1915. 

§  100.  Costs   accrued   before   amendment   of  pleading 

not  taxable  on  final  judgment. 

A  party  finally  successful  in  the  action  is  not  permitted 
to  tax  costs  that  accrued  prior  to  the  amendment  of  the 
pleadings  where  such  amendment  was  not  merely  a 
matter  of  detail  but  was  such  as  to  set  up  a  new  cause 
of  action  such  as  substantial  performance  instead  of 
complete  performance.  A  party  has  no  right  to  go  back 
and  collect  on  a  cause  of  action  hi  which  he  was  de- 
feated. Rowe  v.  Gerry,  109  A.  D.  156;  Fox  v.  Davidson, 
40  A.  D.  620;  McEntyre  v.  Tucker,  40  A.  D.  444;  Lind- 
bald  v.  Lynde,  81  A.  D.  603-605. 


CHAPTER  XIII 

APPEALS 

101.  Statutory  provisions,  §  3251,  subds.  4  and  5. 

102.  Case  on  appeal  must  be  perfected. 

103.  More  than  one  appeal  in  one  case. 

104.  Simultaneous  appeal  from  judgment  and  order. 
106.  When  costs  of  trial  need  not  be  retaxed. 

106.  Costs  in  all  courts  on  entry  of  final  judgment. 

107.  Amount  of  recovery  less  than  $50. 

108.  Dismissal  of  appeal. 

109.  Motion  costs  of  appeal  need  not  be  taxed. 

110.  Costs  in  judgment  of  affirmance. 

111.  Costs  of  appeal  to  be  set  off  on  entry  of  final  judg- 

ment. 

112.  An  appearance  in  the  appellate  court  subjects  a  party 

to  costs  therein. 

113.  Objection  to  appeal  costs. 

114.  Costs  on  appeal  from  an  interlocutory  judgment  of  the 

City  Court. 

115.  Interlocutory  judgment  reversed. 

116.  Interlocutory  judgment  affirmed. 

117.  Demurrer  heard  as  a  contested  motion. 

118.  Only  one  bill  against  several  respondents. 

119.  Motion  for  new  trial  made  at  close  of  trial. 

120.  Appeal  from  order  granting  new  trial  on  newly  dis- 

covered evidence. 

121.  Appeal  from  order. 

122.  Costs  of  appeal  from  order  same  as  motion  costs. 

123.  Costs  include  disbursements. 

124.  Costs  on  reargument  of  appeal. 

125.  Submission  of  papers  same  as  argument. 

126.  Reargument  on  disqualification  of  judge. 

54 


APPEALS  55 

§  127.  Motion  costs  granted  in  appellate  court. 

128.  Costs  of  reargument  when  same  is  referred. 

129.  Costs  as  awarded  in  Court  of  Appeals. 

130.  "Costs"  as  used  in  undertakings. 

131.  Costs  for  making  and  serving  a  case  in  Court  of  Ap- 

peals not  taxable. 

132.  Costs  for  case  on  appeal  to  be  taxed  by  appellant 

only. 

133.  Costs  on  dismissal  of  appeal. 

134.  Costs  in  certiorari  proceedings. 

135.  Costs  to  abide  the  event. 

136.  Construed  to  include  all  costs  in  the  action. 

137.  Construed  as  costs  in  appellate  court  only. 

138.  Party  finally  successful  entitled  to  tax  them. 
138a.  When  appeal  costs  may  be  taxed. 

§  101.  Statutory  provisions,  §  3251,  subds.  4  and  5. 

Costs  on  appeal  to  the  Appellate  Term  or  Appellate 
Division  are: — 

$20  before  argument, 
$40  for  argument, 

$20  for  making  and  serving  a  case,  and  when  the 
case  necessarily  contains  more  than  fifty  folios,  $10 
in  addition  thereto, 

$20  for  making  and  serving  amendments  to  a  case, 
$10  in  the  Appellate  Division,  for  each  term  not 
exceeding  five,  excluding  the  term  at  which  it  is 
argued. 

In  the  Court  of  Appeals: — 
$30  before  argument, 
$60  for  argument, 

$10  for  each  term  not  exceeding  ten,  excluding 
the  term  at  which  it  is  argued. 


56  TAXATION  OF  COSTS 

§  102.  Case  on  appeal  must  be  perfected. 

Where  the  case  is  improperly  on  the  calendar  because 
the  findings  are  not  properly  made  and  signed  by  the 
trial  judge  twenty  dollars  costs  before  argument  will  not 
be  allowed.  To  entitle  a  party  to  these  costs  under  sec- 
tion 3251  of  the  Code,  the  case  must  be  in  a  condition 
to  be  argued  before  the  Appellate  Court.  Nobis  v.  Pol- 
lock, 13  N.  Y.  S.  837. 

§  103.  More  than  one  appeal  in  same  case. 

Where  there  is  more  than  one  appeal  in  the  same  case, 
costs  will  be  allowed  in  each  case  but  disbursements  in 
one  only.  Brassington  v.  Rohrs,  3  Misc.  262;  Stanton 
v.  King,  76  N.  Y.  585. 

§  104.  Simultaneous  appeal  from  judgment  and  order. 

Costs  cannot  be  taxed  both  from  the  appeal  from  the 
judgment,  and  also  from  the  order  denying  a  motion 
for  a  new  trial.  Van  Allen  v.  American  National  Bank, 
10  Abb.  Pr.  N.  S.  331;  Bullard  v.  Pearsall,  46  How.  Pr. 
530.  Where,  therefore,  a  verdict  having  been  directed 
for  defendant,  and  a  motion  for  a  new  trial  having  been 
denied,  and  an  appeal  from  the  judgment  and  order 
having  been  taken  and  both  judgment  and  order  having 
been  affirmed,  the  court  awarded  to  defendants  separate 
bills  of  costs  on  both  appeals,  it  was  held  that  the  court 
having  awarded  costs  on  appeal  from  the  judgment,  it 
had  no  power  to  allow  costs  on  appeal  from  the  order. 
(Section  3239,  subdivision  2.)  Syms  v.  Mayor,  105  N.  Y. 

'S3- 

But  an  appeal  from  a  judgment  and  an  order  denying 
a  motion  for  a  new  trial  on  newly  discovered  evidence 


APPEALS  57 

is  not  within  section  3239,  subdivision  2,  and  costs  of 
each  appeal  can  be  taxed.  Streep  v.  McLoughlin,  36 
Misc.  165;  Pease  v.  Penn.  R.  R.  Co.,  137  A.  D.  459, 
aff'd  203  N.  Y.  573. 

§  105.  When  costs  of  trial  need  not  be  retaxed. 

The  Court  of  Appeals  having  reversed  a  judgment  as 
to  one  cause  of  action  and  granted  a  new  trial  and  having 
otherwise  affirmed  the  judgment  without  costs  to  either 
party,  the  costs  of  the  first  trial  need  not  be  retaxed 
after  the  new  trial  is  had,  only  costs  subsequent  to  the 
reversal  are  taxable.  Talcott  v.  The  Wabash  R.  R.  Co., 
99  A.  D.  239. 

§  106.  Costs  in  all  courts  on  entry  of  final  judgment. 

The  general  rule  is  that  a  party  finally  successful  in 
the  action  is  entitled  to  tax  costs  of  all  trials  had  in  the 
action,  as  well  as  costs  on  appeal  unless  otherwise  or- 
dered by  the  appellate  court.  So  that  where  the  appel- 
late court  reverses  a  judgment  of  the  City  Court  with 
costs  to  appellant  to  abide  the  event,  and  where  in  such 
a  case  respondent  succeeds  in  the  second  action  he  is  en- 
titled to  tax  costs  in  both  trials.  Berrent  v.  Simpson,  61 
Misc.  6n;  Capozzi  v.  Bulkley,  156  A.  D.  55.  So  also 
where  a  judgment  in  favor  of  the  plaintiff  was  reversed 
with  costs  to  abide  the  event,  and  upon  a  second  trial 
the  plaintiff  again  succeeded,  he  was  entitled  to  tax 
costs  of  both  trials.  Mossein  v.  Empire  State  Surety 
Co.,  117  A.  D.  782.  The  event  is  a  determination  in 
the  plaintiff's  favor  on  the  new  trial  sufficient  to  give 
costs  on  the  trial.  Miller  v.  City  of  Buffalo,  129  A.  D. 
833.  Same  rule  applies  to  appeal  costs.  So  held  where 


5  8  TAXATION  OF  COSTS 

an  appeal  was  taken  from  an  order  of  the  Appellate  Term 
reversing  a  judgment  of  the  Municipal  Court  ordering  a 
new  trial,  and  the  Appellate  Division,  having  reversed 
the  determination  of  the  Appellate  Term,  affirmed  the 
judgment  of  the  lower  court,  with  costs.  The  court  in 
that  case  allowed  the  successful  party  costs  of  the  appeal 
in  both  courts.  Greenwald  et  al.  v.  Weir,  131  A.  D.  568. 

§  107.  Amount  of  recovery  less  than  fifty  dollars. 

In  an  action  in  the  City  Court  where  the  plaintiff  re- 
covers judgment  for  more  than  fifty  dollars,  which  is  re- 
versed on  appeal  to  the  Appellate  Term  with  costs  to 
appellant  to  abide  the  event,  and  on  the  second  trial 
the  plaintiff  recovers  less  than  fifty  dollars,  the  plaintiff 
is  not  entitled  to  costs  of  the  first  trial  nor  of  the  appeal, 
but  defendant  is  entitled  to  costs  of  both  trials  and  costs 
of  appeal.  Lennon  v.  Charig,  54  Misc.  298. 

§  108.  Dismissal  of  appeal. 

Where  an  appeal  is  dismissed  for  failure  to  make  and 
serve  a  case,  only  ten  dollars  motion  costs  can  be  taxed. 
Mahon  v.  Mahon,  64  A.  D.  262.  If,  however,  an  appeal 
is  dismissed  upon  argument  on  its  merits,  general  costs 
may  be  taxed.  Webb  v.  Nortin,  10  How.  Pr.  117. 

§  109.  Motion  costs  of  appeal  need  not  be  taxed. 

Where  the  appellate  court  grants  motion  costs  there  is 
no  necessity  to  tax  them  as  the  order  is  sufficient  in  it- 
self. But  if  disbursements  are  granted  the  clerk  should 
tax  them.  Margulies  v.  Damrosch,  51  N.  Y.  S.  833. 

§  110.  Costs  in  judgment  of  affirmance. 

A  judgment  of  affirmance  should  not  contain  costs 


.  APPEALS  59 

included  in  a  previous  judgment,  but  should  contain 
only  costs  of  appeal.  Beardsley  Scythe  Co.  v.  Foster, 
36  N.  Y.  561. 

§  111.  Costs  of  appeal  to  be  set  off  on  entry  of  final 

judgment. 

Where  a  party  to  whom  costs  were  allowed  on  the 
affirmance  of  an  order,  fails  on  the  trial,  these  costs  are 
to  be  deducted  from  the  costs  of  the  successful  party. 
Stevenson  v.  Pusch,  40  How.  Pr.  91. 

§  112.  An  appearance  in  the  appellate  court  subjects  a 

party  to  costs  therein. 

Although  a  party  does  not  appear  in  the  court  below 
to  answer  or  defend  a  suit  against  him,  nevertheless  he 
may  be  charged  with  appeal  costs  if  he  is  unsuccessful 
in  the  relief  he  asks  for  in  the  judgment  obtained  against 
him.  McWhirter  v.  Bowen,  114  A.  D.  68. 

§  113.  Objection  to  appeal  costs. 

An  objection  to  the  costs  taxed  pursuant  to  an  order 
of  the  appellate  court  can  only  be  made  to  the  appellate 
court,  as  the  clerk  of  the  lower  court  has  no  authority 
to  refuse  to  tax  the  costs  as  directed  by  such  order.  Hill 
v.  Muller  et  al.,  53  Misc.  262. 

§  114.  Costs  on  appeal  from  an  interlocutory  judgment 

of  the  City  Court. 

To  ascertain  what  costs  are  to  be  taxed  on  an  appeal 
from  an  interlocutory  judgment  obtained  in  the  City 
Court  of  the  City  of  New  York  it  is  necessary  to  deter- 
mine as  to  whether  the  appeal  is  taken  under  section 
3188  or  section  3189  of  the  Code. 


60  TAXATION  OF  COSTS 

Section  3188  reads: — 

An  appeal  to  the  supreme  court  may  be  taken 
from  a  final  or  interlocutory  judgment  rendered  in 
the  city  court  of  the  city  of  New  York  in  a  case 
where  an  appeal  may  be  taken  to  the  appellate  divi- 
sion of  the  supreme  court  from  a  final  or  interlocu- 
tory judgment  rendered  in  the  supreme  court  in 
sections  1346  and  1349  of  this  act. 
Section  3189  reads: — 

An  appeal  to  the  supreme  court  may  also  be 
taken  from  an  interlocutory  judgment  rendered  or 
an  order  made  at  chambers  or  at  a  special  term,  or  a 
trial  term  of  said  city  court  *  *  *  in  a  case 
where  an  appeal  may  be  taken  to  the  appellate  di- 
vision *  *  *  from  an  interlocutory  judgment 
rendered  as  prescribed  in  sections  1347,  1348,  and 
1349  of  this  act. 

Section  3188  was  amended  by  the  Laws  of  1902,  by  in- 
serting the  words  "interlocutory  judgment,"  but  there 
was  a  failure  to  omit  or  to  strike  out  these  words  in  sec- 
tion 3189  and  the  failure  to  make  such  omission  the 
court  considered  an  inadvertence.  So  that  an  appeal 
from  an  interlocutory  judgment  was  held  not  to  come 
within  section  3189  but  section  3188  of  the  Code  and 
therefore  the  costs  to  be  allowed  on  an  appeal  from  a  de- 
murrer should  be  twenty  dollars  before  argument  and 
forty  dollars  for  argument,  as  provided  for  in  section 
3251,  subdivision  4,  of  the  Code.  Campbell  v.  Hallihan, 
46  Misc.  409. 

The  word  "trial"  in  subdivision  4,  is  used  in  a 
broad  sense  and  is  meant  to  include  judgments  both 
interlocutory  and  final,  whether  rendered  on  the 


APPEALS  6 1 

or  equity  side   of   the  court.     Campbell  v.   Hallahan 
(supra). 

§  115.  Interlocutory  judgment  reversed. 

An  interlocutory  judgment  overruling  a  demurrer  to  a 
complaint  having  been  reversed  with  costs  of  the  appeal 
and  in  the  trial  court,  the  successful  party  is  entitled  to 
tax  twenty  dollars  before  argument,  and  forty  dollars 
for  argument.  Campbell  v.  Hallihan  (supra). 

§  116.  Interlocutory  judgment  affirmed. 

But  on  an  affirmance  of  an  interlocutory  judgment  on  a 
demurrer,  the  successful  party  is  entitled  to  the  taxation 
of  forty  dollars  only  for  argument  of  appeal.  Hill  v. 
Muller,  53  Misc.  262. 

§  117.  Demurrer  heard  as  a  contested  motion. 

Costs  on  an  appeal  from  a  demurrer  brought  on  as  a 
contested  motion  at  Special  Term,  is  $10  costs  at  Special 
Term  and  $10  costs  on  appeal.  Keyes  v.  Lestershire  H. 
R.  Co.,  158  N.  Y.  S.  617.  Where,  however,  the  Court  of 
Appeals  affirmed  a  judgment  of  the  Appellate  Division 
overruling  a  demurrer  to  an  answer  heard  at  special 
term  as  a  contested  motion  pursuant  to  section  976  of 
the  Code,  the  successful  party  was  held  to  be  entitled  to 
tax  $30  before  argument  and  $60  for  argument  (section 
3251,  subdivision  5).  H.  G.  Vogel  Co.  v.  Wolff,  160 
A.  D.  831. 

§  118.  Only  one  bill  against  several  respondents. 

Where  the  order  of  an  appellate  court  affirms  an  order 
of  the  court  below  "with  costs,"  although  there  may  be 


62  TAXATION  OF  COSTS 

several  respondents  appearing  separately  such  order  has 
been  construed  to  allow  only  one  bill  of  costs  on  appeal. 
Matter  of  Kin,  139  A.  D.  766. 

§  119.  Motion  for  new  trial  made  at  the  close  of  trial. 

An  appeal  from  an  order  entered  on  either  the  grant- 
ing or  denial  of  a  motion  for  a  new  trial  carries  costs  as 
provided  for  in  section  3251,  subdivision  4,  of  the  Code, 
$20  before  argument  and  $40  for  argument.  Where, 
therefore,  upon  the  rendition  of  a  verdict  a  motion  was 
made  at  the  trial  on  the  minutes  of  the  court  to  set  the 
verdict  aside  which  was  granted,  and,  upon  appeal  the 
order  having  been  reversed  with  costs,  the  clerk  refused 
to  allow  $20  before  argument  and  $40  for  argument,  the 
appellate  court  reversed  the  Special  Term  order  which  up- 
held the  clerk's  ruling  and  directed  that  such  costs 
should  be  taxed.  Cusick  v.  Adams,  47  Hun,  455. 

Section  3251,  subdivision  4,  referred  to,  reads  in  part 
as  follows,  "an  appeal  *  *  *  frOm  an  order  grant- 
ing or  refusing  a  new  trial,  rendered  or  made  at  a  trial 
term  of  the  supreme  court  or  of  the  city  court  of  the 
city  of  New  York"  before  argument  $20,  and  for  argu- 
ment $40. 

§  120.  Appeal  from  order  granting  new  trial  on  newly  dis- 
covered evidence.    Order  reversed. 

Costs  of  appeal  on  the  reversal  of  an  order  of  the  City 
Court  granting  plaintiff  a  new  trial  on  the  ground  of 
newly  discovered  evidence  is  $20  before  argument,  and 
$40  for  argument;  because  the  successful  party  is  en- 
titled to  the  same  costs  as  he  would  have  been  entitled 
to  tax  in  the  lower  court  had  he  been  successful  there. 


APPEALS  63 

Section  3251,  subdivision  3,  paragraph  8,  provides  that 
a  motion  for  a  new  trial  upon  newly  discovered  evidence 
must  be  made  on  a  case  and  the  taxable  costs  are  the 
same  as  on  an  appeal  as  provided  for  in  subdivision  4  of 
the  same  section.  Although  the  costs  were  denomi- 
nated in  the  bill  submitted  as  being  costs  "upon  appeal 
to  the  Appellate  Term"  it  was  held  to  be  immaterial. 
Brennan  v.  Joline,  70  Misc.  537. 

§  121.  Appeal  from  order. 

An  appeal  from  an  order  granting  or  denying  a  new 
trial  on  newly  discovered  evidence  carries  only  $10 
costs,  and  disbursements  are  allowable.  An  allowance 
of  $20  and  $40  was  held  to  be  improper  and  was  stricken 
out.  Benjamin  v.  Brownstein,  79  Misc.  84. 

This  latter  decision  is  apparently  contrary  to  that  of 
Brennan  v.  Joline  (supra).  But  upon  a  close  reading 
of  the  two  cases  it  will  be  noted  that  there  was  in  the 
case  of  Benjamin  v.  Brownstein  (supra)  an  affirmance 
of  the  order  of  the  court  below,  not  in  any  way  inter- 
fering with  costs  granted  there,  and  that  the  only  ques- 
tion before  the  appellate  court  was  as  to  costs  granted 
on  the  appeal  from  the  order  only.  Such  costs  are  gov- 
erned by  section  3236  and  section  3251,  subdivision  3, 
par.  9,  of  the  Code  allowing  only  ten  dollars. 

§  122.  Costs  on  appeal  from  order  same  as  motion  costs. 

The  hearing  of  an  appeal  from  an  order  is  to  be  re- 
garded as  a  motion  for  the  purpose  of  costs,  and  the 
same  costs  are  to  be  allowed  as  on  a  decision  of  a  mo- 
tion. Cassidy  v.  McFarland,  139  N.  Y.  201 ;  Matter  of 
Van  Dusen,  132  A.  D.  592. 


64  TAXATION  OF  COSTS 

§  123.  Costs  includes  disbursements. 

Where  an  appellate  court  affirms  a  final  order  with 
costs  it  means  ten  dollars  costs  together  with  disburse- 
ments. Cassidy  v.  McFarland,  2  Misc.  189;  Matter  of 
Babcock,  86  A.  D.  564.  Otherwise  if  it  is  an  interlocu- 
tory order.  Disbursements  in  such  event  must  be  ex- 
pressly allowed.  Burnel  v.  Coles,  26  Misc.  378. 

§  124.  Costs  on  reargument  of  appeal. 

Where  a  reargument  is  ordered  the  successful  party 
is  entitled  to  the  costs  of  such  reargument,  provided  it 
was  not  brought  about  through  any  act  or  omission  of 
the  party  taxing  them.  Guckenheimer  v.  Angevine, 
1 6  Hun,  453. 

§  125.  Submission  of  papers  same  as  argument. 

A  submission  of  an  appeal  by  consent  without  oral 
argument  is  an  "argument"  within  section  3251  of  the 
Code  of  Civil  Procedure.  Malcolm  v.  Hamill,  65  How. 
Pr.  506. 

§  126.  Reargument  on  disqualification  of  judge. 

Where  an  appeal  was  argued  before  the  Appellate 
Division,  and  the  court  ordered  a  reargument  because 
one  of  the  justices  who  heard  the  argument  had  been 
transferred,  the  successful  party  was  entitled  to  tax  a 
fee  for  the  reargument  as  well  as  for  the  argument  of 
the  appeal.  Roberson  v.  Rochester  Folding  Box  Co., 
68  A.  D.  528. 

§  127.  Motion  costs  granted  in  appellate  court. 

"Motion  costs"  imposed  on  a  motion  for  reargument 
on  appeal  form  no  part  of  the  costs  referred  to  in  the 


APPEALS  65 

order  affirming  the  judgment  below,  and  the  taxation 
of  the  same  in  the  lower  court  was  unauthorized.  Hill 
v.  Muller,  53  Misc.  262. 

§  128.  Costs  of  reargument  when  same  is  referred. 

Where  a  reargument  was  granted  but  the  judges  sitting 
refused  to  hear  or  permit  reargument  and  sent  the  briefs 
submitted  to  the  judges  who  had  previously  heard  the 
argument,  the  successful  party  is  entitled  to  tax  costs  of 
reargument.  Schwartz  v.  Ribaudo,  63  Misc.  64. 

§  129.  Costs  as  awarded  in  the  Court  of  Appeals. 

When  the  Court  of  Appeals  awards  a  party  costs  in 
the  trial  court,  the  award  carries  with  it  not  only  the 
taxable  costs  and  the  taxable  disbursements,  but  such 
further  sum,  if  any,  by  way  of  extra  allowance,  as  that 
court,  in  the  exercise  of  a  sound  discretion  may  award. 
Hascall  v.  King,  165  N.  Y.  288. 

§  130.  "Costs"  as  used  in  undertakings  on  appeal. 

The  term  "costs"  as  used  in  section  1326  of  the  Code, 
relative  to  undertakings  on  an  appeal  to  the  Court  of 
Appeals,  includes  only  such  costs  as  are  awarded  in  that 
court.  Gallinger  v.  Engelhardt,  26  Misc.  49. 

§  131.  Costs  for  making  and  serving  a  case  in  Court  of 
Appeals  not  taxable. 

Under  section  3251,  subdivision  5,  of  the  Code  costs 
allowable  to  be  taxed  upon  appeal  to  the  Court  of  Ap- 
peals are  $30  before  and  $60  for  argument.  Nothing 
can  be  taxed  for  making  and  serving  a  case.  Shaver  v. 
Eldred,  86  Hun,  51. 


66  TAXATION  OF  COSTS 

§  132.  Costs  for  case  on  appeal  to  be  taxed  by  appellant 
only. 

The  statutory  costs  allowed  for  making  and  serving 
a  case  can  be  taxed  only  by  the  appellant.  Respondent 
does  not  become  entitled  to  them  when  the  appellant  is 
defeated.  Feiber  v.  Home  Silk  Mills,  L.  J.  Nov.  10,  1914. 

§  133.  Costs  on  dismissal  of  appeal. 

Where  the  Court  of  Appeals  dismisses  an  appeal  "with 
costs  and  $10  costs  of  motion"  upon  a  preliminary  mo- 
tion to  dismiss  the  appeal  and  after  the  argument  thereof, 
or  upon  a  motion  embodied  in  the  argument  of  re- 
spondent, respondent  is  not  entitled  to  tax  the  argument 
fee  in  the  Court  of  Appeals.  Matter  of  Wray  Drug  Co., 
93  A.  D.  456. 

§  134.  Costs  in  certiorari  proceedings. 

In  certiorari  against  assessors  to  review  their  official 
actions,  the  award  and  taxation  of  costs  is  governed  by 
the  provisions  of  Chapter  269  of  the  Laws  of  1880,  and 
costs  of  appeal,  if  allowed,  are  to  be  allowed  as  on  appeals 
from  orders  under  section  3239  of  the  Code  of  Civil 
Procedure.  People  ex  rel.  v.  Barker,  90  Hun,  253; 
People  ex  rel.  v.  Pratt,  50  State  Rep.  355. 

§  135.  Costs  to  abide  the  event. 

The  courts  have  been  at  variance  as  to  the  proper 
meaning,  interpretation,  and  construction  to  be  placed 
upon  the  phrases  "with  costs"  and  "with  costs  to  abide 
the  event"  as  used  by  the  appellate  courts  in  affirming 
or  reversing  a  judgment  or  order  of  the  court  below. 
There  are  two  lines  of  decisions  which  apparently  are 


APPEALS  67 

directly  opposed  to  each  other.  One  set  of  authorities, 
supported  by  the  highest  court  in  the  state,  draws  a  dis- 
tinction between  "with  costs"  used  without  any  addi- 
tional qualifying  limitation,  and  "with  costs  to  abide 
the  event,"  holding  that  where  a  judgment  is  affirmed 
or  reversed  "with  costs  to  abide  the  event,"  the  party 
finally  successful  in  the  action,  is  entitled  to  all  costs  of 
the  action  including  the  costs  on  appeal;  but  when  an 
order  is  affirmed  or  reversed  "with  costs"  the  costs  in- 
tended are  those  of  the  appellate  court  only. 

§  136.  Construed  to  include  all  costs  in  the  action. 

In  an  action  where  the  appellate  court  dismissed  with 
costs  all  the  proceedings  below,  it  was  held  that  the  court 
intended  to  control  the  whole  subject  and  award  costs 
in  the  lower  courts.  In  the  Matter  of  Andrew  Hood,  30 
Hun,  472.  Chief  Justice  Daly  in  Star  Cash  C.  Co.  v. 
Reinhardt,  6  Misc.  365,  said,  "when  we  reverse  a  judg- 
ment of  the  City  Court  and  order  a  new  trial  with  costs 
to  the  appellant  to  abide  the  event,  we  intend  that  the 
costs  of  appeal  to  this  court,  and  of  the  appeal  to  the 
General  Term  of  the  City  Court  and  of  the  trial  which 
resulted  in  the  judgment  reversed,  shall  be  included  in 
such  costs."  Similarly  held  where  an  order  of  the  Court 
of  Appeals  ordered  a  new  trial  with  costs  to  abide  the 
event  that  the  costs  of  the  former  trial  as  well  as  those 
of  the  appeal  were  intended  to  be  allowed.  Mott  v. 
Consumers  Ice  Co.,  8  Daly,  244. 

Another  leading  case  is  Franey  v.  Smith,  126  N.  Y. 
658,  where  the  plaintiff  having  recovered  judgment  on 
the  first  trial  and  upon  appeal  to  the  Appellate  Term 
the  judgment  was  affirmed,  but  on  appeal  to  the  Court 


68  TAXATION  OF  COSTS 

of  Appeals  it  was  reversed  and  a  new  trial  granted  "with 
costs  to  abide  the  event."  Upon  the  second  trial  the 
complaint  was  dismissed.  The  court,  Per  Curiam,  held 
that  "  where  we  reverse  the  judgment  of  the  court  below, 
and  grant  a  new  trial  'with  costs  to  abide  the  event'  all 
the  costs  of  the  action  up  to  that  time  are  intended." 

Opposed  to  these  decisions  and  more  generally  followed 
by  a  majority  of  the  courts,  including  the  Court  of  Ap- 
peals, are  those  expressed  in  a  very  early  decision  where 
the  court  held  that  the  costs  allowed  were  the  costs  of 
appeal  only,  without  drawing  any  distinction  between 
the  phrases  "with  costs"  and  "with  costs  to  abide  the 
event"  whether  the  appeal  was  from  a  judgment  or  from 
an  order. 

§  137.  Construed  as  costs  in  appellate  court  only. 

In  Howell  v.  VanSiclen,  8  Hun,  524,  the  court  granted 
a  new  trial  with  costs  to  defendant  to  abide  the  event. 
The  costs  allowed  were  held  to  mean  the  costs  of  the 
appeal  and  not  the  costs  of  the  action.  When  therefore 
on  the  second  trial  the  plaintiff  was  again  successful  he 
became  entitled  to  costs  in  the  action  except  the  costs 
of  the  appeal. 

So  also  where  a  judgment  of  the  City  Court  was  re- 
versed by  the  Appellate  Term  with  costs  to  abide  the 
event,  the  costs  conditional  on  the  event  were  held  to 
be  those  of  the  appellate  court  only.  In  such  a  case  if 
the  respondent  succeeds  on  the  second  trial  he  is  entitled 
to  tax  costs  of  both  trials.  Berrent  v.  Simpson,  61  Misc. 
6zi. 

The  Appellate  Division  reversed  the  Appellate  Term 
and  ordered  a  new  trial  with  costs  to  appellant  to  abide 


APPEALS  69 

the  event.  Upon  a  retrial  the  respondent  again  suc- 
ceeded in  obtaining  judgment.  The  court  in  that  case 
did  not  allow  the  taxation  of  costs  and  disbursements 
of  the  appeal  to  the  Appellate  Term,  but  allowed  the 
taxation  of  costs  of  the  first  trial  to  stand  on  the  ground 
that  the  costs  of  the  trial  are  given  to  the  successful 
party  by  statute  and  that  neither  a  trial  court  nor  an 
appellate  court  can  deprive  him  of  it.  Walnut  Hill  Bank 
v.  National  Reserve  Bank,  76  Misc.  208;  Murtha  v. 
Curley,  92  N.  Y.  359. 

In  Belt  i}.  American  Central  Insurance  Co.,  33  A.  D. 
239,  the  court  held  that  the  costs  awarded  by  the  Court 
of  Appeals  in  reversing  a  judgment  with  costs  to  abide 
the  event  were  costs  in  the  Court  of  Appeals  only.  Sim- 
ilarly in  First  National  Bank  of  Meadville  v.  Fourth 
National  Bank  of  New  York,  84  N.  Y.  469,  the  court 
said  "where  an  order  is  made  by  this  court,  on  appeal 
from  a  judgment,  with  costs  to  abide  the  event  and  with- 
out other  limitation,  the  respondent  if  successful,  is 
entitled  to  tax  the  costs  of  the  appeal." 

The  reversal  of  the  original  order  was  with  costs  and 
as  construed  it  entitled  the  appellant  to  costs  of  this 
court  only.  Matter  of  Water  Commissioners,  104  N.  Y. 
677;  this  case  was  followed  and  cited  with  approval  hi 
Broadway  Savings  Institution  v.  Town  of  Pelham,  148 
N.  Y.  737;  Dobeck  v.  Austro- American  S.  S.  Co.,  83 
Misc.  641. 

Same  rule  followed  in  Adams  v.  Massey,  51  Misc.  230, 
where  the  defendant  having  appealed  to  the  Appellate 
Division  from  a  judgment  against  him,  the  judgment 
was  reversed  with  costs  to  appellant  to  abide  the  event. 
The  second  trial  which  resulted  in  a  judgment  for  de- 


70  TAXATION  OF  COSTS 

fendant  was  also  reversed  with  costs  to  abide  the  event. 
On  the  third  trial  the  plaintiff  having  finally  succeeded 
in  the  action  was  not  allowed  to  tax  the  costs  of  appeal 
of  the  first  judgment. 

"The  rule  seems  to  be  well  established  that  when  the 
Court  of  Appeals  in  its  discretion  allows  or  disallows 
costs  its  determination  of  the  subject  applies  to  that 
court  only."  Fulton  v.  Krull,  151  A.  D.  143;  Stevens  v. 
Central  National  Bank,  168  N.  Y.  560. 

The  Court  of  Appeals  will  not,  however,  interfere  with 
the  construction  and  interpretation  by  the  lower  court 
of  its  own  order  with  reference  to  the  words  "with  costs 
to  abide  the  event"  as  used  by  it.  Union  Trust  Co.  v. 
Whiton,  78  N.  Y.  491. 

§  138.  Party  finally  successful  entitled  to  tax  them. 

A  recovery  of  costs  in  an  action  may  be  limited  to 
one  of  the  parties  to  the  action  but  where  an  order  re- 
versing a  judgment  and  granting  a  new  trial  is  made 
with  costs  to  abide  the  event,  without  other  limitation, 
the  party  finally  succeeding  in  the  action  is  entitled  to 
tax  them.  First  National  Bank  of  Meadville  v.  Fourth 
National  Bank  of  New  York,  84  N.  Y.  469,  distinguished 
in  Thomas  v.  Evans,  50  Hun,  441,  wherein  the  court  held 
that  the  costs  intended  were  those  of  the  Court  of  Ap- 
peals only. 

In  Elliot  v.  Luengene,  19  Misc.  428,  following  the 
riding  in  Starr  Cash  Car  Co.  v.  Reinhardt,  a  new  trial 
was  ordered  "with  costs  to  appellant  to  abide  the 
event,"  and  the  respondent  plaintiff  having  again  suc- 
ceeded in  the  action,  he  was  not  entitled  to  tax  the  costs 
of  the  first  trial  nor  the  costs  of  the  appeal. 


APPEALS  71 

§  138a.  When  appeal  costs  may  be  taxed. 

On  an  appeal  taken  from  the  Supreme  Court  to  the 
Court  of  Appeals  the  clerk  will  not  tax  costs  of  such 
appeal  unless  an  order  had  been  previously  entered 
making  the  order  and  judgment  of  the  Court  of  Appeals 
the  order  and  judgment  of  the  Supreme  Court. 

Likewise  when  an  order  or  judgment  of  the  City  Court 
has  been  appealed  to  the  Appellate  Term  or  Appellate 
Division,  no  costs  may  be  taxed  until  after  an  order  had 
been  entered  making  the  order  and  judgment  of  the 
Appellate  Term  or  Appellate  Division  the  order  and 
judgment  of  the  City  Court. 

It  has  been  the  practice  in  the  City  Court  not  to  tax 
appeal  costs  unless  notice  of  such  taxation  has  previously 
been  served  on  the  adverse  party. 


CHAPTER  XIV 

ACTIONS  RELATING  TO  REAL  PROPERTY 

§  139.  Right  to  costs  not  limited  to  amount  of  recovery. 

140.  Title  to  property  must  be  in  question. 

141.  Plaintiff  must  obtain  an  affirmative  judgment. 

§  139.  Right  to  costs  not  limited  to  amount  of  recovery. 

Where  the  demand  for  costs  is  made  under  subdivi- 
sion i,  of  section  3228  of  the  Code  in  an  action  "triable 
by  a  jury  to  recover  real  property  or  an  interest  in  real 
property,  or  in  which  a  claim  of  title  to  real  property 
arises  upon  the  pleadings"  the  plaintiff  is  entitled  to 
tax  costs  even  if  he  recovers  less  than  fifty  dollars  if  he 
succeeds  as  to  any  part  of  the  title.  Hall  v.  Hodskins, 
30  How.  Pr.  15;  Locklin  v.  Casler,  50  How.  Pr.  43. 

The  defendant,  however,  although  he  obtains  judg- 
ment in  his  favor  must  obtain  a  certificate  that  title  to 
real  property  was  at  issue  under  section  3235  of  the  Code. 
If  the  pleadings  do  not  disclose  that  title  to  real  property 
was  raised  at  the  trial,  the  successful  party  must  obtain 
a  certificate  from  the  judge  or  referee  who  tried  the  case 
certifying  to  that  fact.  Cooley  v.  Cummings,  4  N.  Y.  S. 
53°- 

§  140.  Title  to  property  must  be  in  question. 

Unnecessary  allegations  as  to  title  to  real  property 
does  not  bring  up  the  question  of  title.  Rathbone  v. 
McConnel,  21  N.  Y.  466;  Bloomingdale  v.  Steubing, 

72 


ACTIONS  RELATING  TO  REAL  PROPERTY         73 

35  N.  Y.  S.  1074.  Nor  is  it  sufficient  that  the  question 
relates  to  real  property.  The  title  must  be  in  question. 
Collins  i).  Adams,  4  N.  Y.  S.  217. 

If  the  court  had  no  jurisdiction  to  try  the  question 
of  title  no  costs  can  be  imposed  or  taxed.  Wilkins  v. 
Williams,  3  N.  Y.  S.  897. 

Where  a  personal  cause  of  action  is  united  with  one 
relating  to  real  property  and  the  plaintiff  recovers  less 
than  fifty  dollars  in  the  former  and  is  defeated  in  the 
latter  he  cannot  tax  costs.  Alexander  v.  Hard,  42  How. 
Pr.  131. 

§  141.  Plaintiff  must  obtain  an  affirmative  judgment. 

Where  the  demand  for  costs  is  made  under  this  sub- 
division there  must  be  a  final  judgment  in  plaintiff's 
favor.  Where,  therefore,  the  jury  does  not  find  any  tres- 
pass has  been  committed  and  there  is  no  verdict  for 
plaintiff  for  damages,  costs  cannot  be  taxed  by  the 
plaintiff.  Hill  v.  McMahon,  81  A.  D.  324.  Costs  were 
allowed  where  the  plaintiff  succeeded  in  establishing 
trespass  in  Bowen  v.  Holdredge,  134  A.  D.  855. 

Where  the  plaintiff  recovers  possession  of  property 
and  six  cents  damages,  the  defendant,  although  he  suc- 
ceeded in  recovering  six  cents  damages  on  the  counter- 
claim for  an  unlawful  interference  with  an  easement,  is 
not  entitled  to  tax  costs,  because  plaintiff  succeeded  in 
the  action.  Peck  v.  Haverstraw  Water  Supply  Co.,  81 
Misc.  428. 


CHAPTER  XV 

ACTIONS  FOR  ASSAULT,   SLANDER,   ETC, 
§  142.  Statutory  provisions. 

§  142.  Statutory  provisions. 

Subdivision  3  of  section  3228  of  the  Code  provides 
that  "in  an  action  to  recover  damages  for  an  assault, 
battery,  false  imprisonment,  libel,  slander,  criminal  con- 
versation, seduction  or  malicious  prosecution;  or  a  fine 
or  penalty  in  which  the  people  of  the  state  are  a  party, 
the  plaintiff  recovers  less  than  fifty  dollars  damages, 
the  amount  of  his  costs  cannot  exceed  the  damages." 


74 


CHAPTER  XVI 

ACTIONS  IN  REPLEVIN 

§  143.  Statutory  provisions. 

144.  Costs  dependent  on  amount  of  recovery. 

145.  Allowance  of  costs. 

146.  Costs  disallowed. 

147.  When  recovery  is  within  §  3228,  subd.  5,  of  the  Code. 

§  143.  Statutory  provisions. 

If  the  value  of  a  chattel  or  of  all  the  chattels  recovered 
by  the  plaintiff,  as  fixed,  together  with  the  damages,  if 
any,  awarded  to  him,  is  less  than  fifty  dollars  the  amount 
of  his  costs  cannot  exceed  the  amount  of  the  value  and 
the  damages.  Section  3228  of  the  Code  of  Civ.  Pro- 
cedure, subdivision  2. 

§  144.  Costs  dependent  on  amount  of  recovery. 

The  plaintiff  in  a  replevin  action  in  order  to  entitle 
himself  to  a  full  bill  of  costs,  must  establish  in  addition 
to  his  right  to  recover  possession  of  the  chattel  in  con- 
troversy, the  fact  that  its  value  together  with  the  dam- 
ages, if  any,  which  shall  be  awarded  to  him  amounts  to 
the  sum  of  fifty  dollars  or  more.  If  the  amount  recov- 
ered is  less  than  fifty  dollars  the  costs  cannot  exceed  the 
amount  of  such  value  and  damages.  Rapid  Safety  Fil- 
ter Co.  v.  Wyckoff,  20  Misc.  429. 

§  145.  Allowance  of  costs. 

Where,  therefore,  a  plaintiff  sued  in  the  City  Court  of 

75 


76  TAXATION  OF  COSTS 

the  City  of  New  York  in  replevin  for  property  alleged  in 
the  complaint  and  writ  to  be  of  the  value  of  $850,  and 
shown  to  be  worth  more  than  $250,  and  was  awarded  the 
property  together  with  $150  damages  for  the  detention, 
he  was  entitled  to  tax  the  usual  costs  in  an  action  in  the 
City  Court.  Smith  v.  Walker,  131  N.  Y.  S.  676. 

So  also  where  the  plaintiff  in  an  action  for  the  re- 
covery of  a  chattel  accepts  an  offer  for  the  return,  making 
no  provisions  for  an  amount  to  be  paid  in  lieu  of  failure 
to  return  the  chattels,  with  two  dollars  damages  for 
its  detention,  only  two  dollars  costs  which  follow  the 
money  damages  can  be  imposed.  Hausauer  v.  Macha- 
wicz  et  al,  54  A.  D.  23. 

§  146.  Costs  disallowed. 

Where  all  claims  for  damages  for  the  detention  of  the 
property  in  an  action  in  replevin  was  waived,  and  there 
was  also  no  proof  offered  which  tended  in  any  way  "to 
fix"  the  value  of  such  property,  no  costs  were  allowed 
to  be  taxed.  Herman  et  al.  v.  Gervin,  8  A.  D.  418. 
Similarly  held  in  an  action  in  replevin  where  the  plain- 
tiff succeeded  in  recovering  the  chattels  without  fixing 
any  value  of  the  chattels  nor  obtaining  any  damages  for 
the  detention  thereof,  costs  were  not  allowed  the  plain- 
tiff. Lockwood  v.  Waldorf,  36  N.  Y.  S.  199.  The 
value  of  the  chattels  will  not  be  allowed  to  be  shown  by 
affidavit.  Rapid  Safety  Filter  Co.  v.  Wyckoff,  20  Misc. 
429. 

Where  the  costs  allowed  cannot  exceed  the  amount 
recovered,  such  costs  include  costs  and  disbursements. 
People  of  the  State  of  New  York  v.  Keller,  35  Misc. 

785- 


ACTIONS  IN  REPLEVIN  77 

§  147.  When  recovery  is  within  §  3228,  subd.  5,  of  the 
Code. 

Where  in  an  action  in  replevin  brought  in  the  City 
Court,  the  chattels  were  returned  to  the  plaintiff  with- 
out having  their  value  fixed  on  the  trial  of  the  action, 
and  the  damages  allowed  were  only  fifty  dollars,  the 
court  ruled  that  the  amount  recovered  being  less  than 
two  hundred  and  fifty  dollars,  section  3228,  subdivision 
5,  applied  and  no  costs  were  allowable.  Hoornbeck  v. 
Baker,  L.  J.  Feb.  7,  1914. 


CHAPTER  XVII 

ACTIONS  TO  RECOVER  SUM  OF  MONEY  ONLY 

§  148.  Recovery  of  fifty  dollars  or  more. 
149.  Recovery  less  than  fifty  dollars. 

§  148.  Recovery  of  fifty  dollars  or  more. 

To  entitle  the  plaintiff  to  costs  under  subdivision  4, 
section  3228,  of  the  Code,  the  judgment  demanded  must 
be  for  money  only  and  the  recovery  must  be  fifty  dollars 
or  more.  It  does  not  matter  whether  the  action  is  legal 
or  equitable.  Murthey  v.  Curley,  92  N.  Y.  359. 

Where  a  summons  contains  a  notice  that  upon  de- 
fault judgment  will  be  taken  for  a  specific  amount  with 
costs,  it  will  be  assumed  that  the  complaint  would  have 
demanded  a  money  judgment  only,  and  in  such  a  case 
it  is  immaterial  whether  the  action  is  a  legal  or  an  equi- 
table one.  Murthey  v.  Burke,  121  A.  D.  400. 

§  149.  Recovery  less  than  fifty  dollars. 

A  plaintiff  having  sued  three  defendants  for  injuries 
received,  settled  with  two  of  them  for  two  thousand 
dollars.  He  continued  the  action  against  the  third  and 
obtained  a  verdict  for  six  cents.  The  court  disallowed 
wholly  the  plaintiff's  bill  of  costs  on  the  ground  that  the 
recovery  was  for  less  than  fifty  dollars  and  came  within 
the  provisions  of  section  3228,  subdivision  4,  of  the  Code. 
Gaetjens  v.  City  of  New  York,  145  A.  D.  640. 

An  action  was  brought  in  the  City  Court  and  plaintiff 


ACTIONS  TO  RECOVER  SUM  OF  MONEY  ONLY     79 

recovered  judgment  for  more  than  fifty  dollars.  On 
appeal  judgment  was  reversed  with  costs  to  appellant  to 
abide  the  event.  On  the  second  trial  the  plaintiff  hav- 
ing recovered  less  than  fifty  dollars  he  was  not  allowed 
to  tax  costs  of  the  first  trial  nor  of  the  appeal.  On  the 
contrary  the  court  allowed  defendant  the  costs  of  the 
appeal  and  of  both  trials.  Lennon  v.  Chang,  54  Misc. 
299. 


CHAPTER  XVIII 

ALLOWANCE    OF   COSTS    WHEN   RECOVERY   COMES    WITHIN 
§  3228,  SUBDIVISION  5,  OF  THE  CODE 

§  160.  Statutory  provisions. 
151.  Allowance  of  costs  dependent  upon  place  of  service. 

162.  Meaning  of  "  triable." 

163.  When  amount  of  recovery  brings  cause  within  section. 

164.  No  allowance  on  voluntary  appearance  of  defendant. 
166.  When  costs  allowed  on  voluntary  appearance  of  de- 
fendant. 

166.  Subdivision  6  does  not  apply  to  appeal  costs. 

167.  Effect  of  subds.  4  and  6  of  §  3228  and  §  3229. 

§  150.  Statutory  provisions. 

The  plaintiff  is  not  entitled  to  costs  if  he  recovers  less 
than  one  thousand  dollars  in  an  action  in  the  Supreme 
Court  where  the  nature  of  the  action  is  such  that  it 
could  have  been  tried  in  the  City  Court  but  for  the 
amount  demanded  in  the  complaint,  or  where  the  amount 
recovered  is  less  than  five  hundred  dollars  where  the  na- 
ture of  the  action  is  such  that  it  could  have  been  brought 
in  the  County  Court;  or  where  the  plaintiff  recovers  less 
than  two  hundred  and  fifty  dollars  in  an  action  in  the 
City  Court  where  the  nature  of  the  action  is  such  that  it 
could  have  been  tried  in  the  Municipal  Court.  Streat 
v.  Wolf,  132  A.  D.  873. 

§  151.  Allowance  of  costs  dependent  upon  place  of  service. 

The  question  as  to  whether  the  provisions  of  subdivi- 

80 


SEC.  3228,  SUED.  5  OF  CODE  81 

sion  5  of  section  3228  apply  is,  "where  was  the  service 
actually  made"  and  not  whether  any  other  service 
could  have  been  made  so  as  to  bring  the  action  in  a  court 
of  lesser  jurisdiction.  So  that  although  a  defendant  may 
have  a  place  of  business  in  New  York  county  but  resides 
in  Kings  county,  nevertheless  if  he  is  served  in  Kings 
county  in  an  action  brought  in  the  New  York  Supreme 
Court,  the  plaintiff  is  entitled  to  recover  costs  although 
the  recovery  was  less  than  one  thousand  dollars.  The 
question  is,  was  the  service  made  in  New  York  county? 
It  is  immaterial  whether  any  other  service  could  have 
been  made  so  as  to  bring  the  action  within  the  juris- 
diction of  the  City  Court.  Moraff  v.  Kohn,  157  A.  D. 
648. 

Where  therefore,  at  the  time  of  the  commencement 
of  the  action  the  plaintiff  resides  in  Manhattan  and  de- 
fendant in  Brooklyn,  Kings  county,  where  he  was  served 
with  summons,  and  the  trial  of  the  action  results  in  the 
recovery  of  less  than  one  thousand  dollars  the  plaintiff 
is  entitled  to  recover  costs.  G.  P.  Putnam's  Sons  v. 
Picket,  152  A.  D.  814. 

§  152.  Meaning  of  "  triable." 

The  word  "triable"  as  used  in  the  section  is  intended 
to  mean  the  place  of  trial  as  indicated  in  the  venue. 
Therefore,  although  defendant  was  served  in  Kings 
county  but  was  tried  in  Queens  county,  plaintiff  is  en- 
titled to  costs  although  the  amount  recovered  was  only 
one  hundred  dollars.  Burgdorf  v.  Brooklyn,  Queens 
County  &  S.  R.  Co.,  130  A.  D.  253. 

The  term  is  also  intended  to  refer  to  conditions  not  as 
they  existed  at  the  time  of  bringing  of  the  action  but  to 


82  TAXATION  OF  COSTS 

conditions  existing  at  time  of  trial  of  the  action.     Sey- 
mour v.  Wheeler,  137  A.  D.  52. 

§  153.  When  amount  of  recovery  brings  cause  within 
section. 

Plaintiff  obtained  a  judgment  for  less  than  two  hundred 
and  fifty  dollars  on  failure  of  defendant  to  appear  in  an 
action  brought  in  the  Supreme  Court  that  could  have 
been  brought  in  the  City  Court.  On  motion  the  court 
opened  the  default  on  payment  of  "costs  of  action." 
"Under  subdivision  5  of  section  3228  of  the  Code  there 
could  be  no  costs  of  the  action  because  the  amount  re- 
covered was  less  than  one  thousand  dollars,  the  nature 
of  the  action  being  such  that  it  could  have  been  brought 
in  the  City  Court.  The  clerk  was  justified  in  refusing 
to  tax  a  bill  of  costs  and  the  order  directing  him  to  do  so 
was  erroneous."  Girbekian  v.  Costikyan,  126  A.  D.  813. 

Where  a  recovery  of  less  than  $250  was  had  in  an  ac- 
tion in  the  Kings  County  Court  that  could  have  been 
brought  in  the  Municipal  Court,  the  clerk  was  not  au- 
thorized to  tax  costs  although  the  defendant  did  not 
assert  the  prohibition  of  the  statute  before  the  clerk. 
The  plaintiff  was  deprived  of  the  right  to  any  costs  by 
reason  of  the  express  provision  of  subdivision  5  of  sec- 
tion 3228,  and  it  was  not  necessary  to  object  to  the 
clerk's  taxation.  Leyden  v.  Brooklyn  Heights  R.  R. 
Co.,  122  A.  D.  383. 

In  an  action  in  the  City  Court  brought  upon  two 
causes  of  action  amounting  to  $776  where  one  cause  of 
action  was  settled  and  by  stipulation  eliminated  from 
the  suit,  and  the  plaintiff  recovered  a  verdict  of  $200  on 
the  other  cause  of  action,  he  was  not  entitled  to  costs, 


SEC.  3228,  SUED.  5  OF  CODE  83 

and  a  motion  to  vacate  the  taxation  should  be  granted. 
Hill  v,  Kann,  50  Misc.  360. 

§  164.  No  allowance  on  voluntary  appearance  of  de- 
fendant. 

The  Appellate  Division  has  construed  differently  the 
effect  of  a  voluntary  appearance  of  a  defendant  with 
reference  to  subdivision  5  of  section  3228  of  the  Code, 
making  such  voluntary  appearance  in  one  instance 
equivalent  to  a  personal  service  and  in  other  instances 
refusing  to  consider  it  equivalent  to  personal  service 
within  the  meaning  of  that  subdivision. 

Upon  a  critical  reading  of  the  cases,  however,  it  will 
be  observed  that  the  defendant  in  one  instance  is  a  resi- 
dent of  the  county  where  the  trial  of  the  action  takes 
place  and  in  the  other  he  is  a  non-resident.  So  that 
when  there  was  a  voluntary  appearance  by  a  resident  of 
the  county  of  New  York  in  an  action  in  the  Supreme 
Court  it  was  considered  equivalent  to  personal  service 
upon  him  and  the  plaintiff  having  recovered  less  than 
one  thousand  dollars  he  was  not  entitled  to  tax  any  costs. 
Hubbard  v.  Heinze,  145  A.  D.  828. 

§  155.  When  costs  allowed  on  voluntary  appearance  of 

defendant. 

But  in  an  action  brought  in  the  Supreme  Court  against 
a  foreign  non-resident  defendant  upon  whom  service  of 
summons  by  publication  has  been  improperly  effected 
and  who  voluntarily  appears  in  the  action,  the  plaintiff, 
although  he  recovered  less  than  one  thousand  dollars, 
was  allowed  to  tax  a  full  bill  of  costs.  The  court  con- 
strued such  voluntary  appearance  not  the  equivalent 


84  TAXATION  OF  COSTS 

of  a  personal  service  within  the  county  so  as  to  preclude 
the  plaintiff  from  taxing  costs.  "The  sole  test  pre- 
scribed by  the  provisions  of  subdivision  5,  with  respect 
to  whether  the  action  could  have  been  brought  in  the 
City  Court  is  whether  service  was  actually  made  in 
New  York  county."  Jacob  v.  White,  164  A.  D.  in. 

Similarly  held  in  an  action  in  the  City  Court  where 
defendant  was  a  non-resident  and  before  service  by  pub- 
lication was  commenced  he  voluntarily  appeared  in  the 
action  and  the  court  directed  the  taxation  of  the  costs 
although  the  recovery  was  only  one  hundred  dollars,  such 
voluntary  appearance  not  having  been  considered  as 
personal  service  within  the  provisions  of  the  section. 
Swartout  v.  Scheideberg,  68  Misc.  133. 

§  156.  Subdivision  5  does  not  apply  to  appeal  costs. 

Subdivision  5  of  section  3228  has  no  application  what- 
ever to  costs  given  on  appeal.  La  Rosa  v.  Wilner,  54 
Misc.  574. 

Where,  therefore,  upon  appeal  a  new  trial  is  granted 
with  costs  to  abide  the  event,  such  costs  are  taxable 
notwithstanding  section  3228,  subdivision  5,  limiting 
taxation  of  costs  in  certain  cases.  Section  3237  of  the 
Code  provides  that  such  section  shall  not  affect  the 
recovery  of  costs  on  appeal.  Seldin  v.  Block,  153  N.  Y.  S. 
980. 

§  157.  Effect  of  subdivisions  4  and  5  of  §  3228  and  §  3229. 

The  defendant  is  entitled  to  costs  if  the  plaintiff  re- 
covers less  than  fifty  dollars  as  provided  for  in  section 
3228,  subdivision  4,  in  conjunction  with  section  3229 
of  the  Code.  But  neither  plaintiff  nor  defendant  is  en- 


SEC.  3228,  SUED.  5  OF  CODE  85 

titled  to  costs  if  the  plaintiff  recovers  $50  or  more,  but 
less  than  $1,000  in  an  action  in  the  Supreme  Court  where 
the  nature  of  the  action  is  such  that  it  could  have  been 
tried  in  the  City  Court  but  for  the  amount  demanded; 
or  where  the  plaintiff  recovers  $50  or  more  and  less 
than  $250  in  an  action  in  the  City  Court  where  the  na- 
ture of  the  action  is  such  that  it  could  have  been  tried 
in  the  Municipal  Court. 

The  latter  part  of  subdivision  5  stating  that  "the  fact 
that  in  any  action  a  plaintiff  is  not  entitled  to  costs  under 
the  provisions  of  this  subdivision  shall  not  entitle  the 
defendant  to  costs  under  the  next  following  section"  is 
applicable  to  cases  in  which  the  plaintiff  cannot  tax  costs 
solely  by  reason  of  that  subdivision.  Streat  v.  Wolf, 
132  A.  D.  873.  The  latter  part  of  subdivision  5  is  not 
intended  to  deprive  defendant  of  costs  merely  because 
the  plaintiff  is  not  entitled  to  costs  by  reason  of  his 
failure  to  recover  the  amount  specified  therein.  So  that 
where  a  plaintiff  refused  to  accept  an  offer  of  judgment 
by  defendant  and  on  trial  he  recovers  less  than  the 
amount  offered,  defendant  is  entitled  to  costs  subsequent 
to  the  time  of  the  offer.  Patterson  v.  Woodbury  Der- 
matological  Institution,  117  A.  D.  600. 

A  reference  under  the  Code  is  governed  in  the  matter 
of  costs  in  the  same  way  as  all  other  actions,  and  it  is 
necessary  for  plaintiff  to  recover  the  amounts  specified 
in  section  3228,  subdivisions  4  and  5,  to  entitle  him  to 
costs. 


CHAPTER  XIX 

DEFENDANT   ENTITLED   TO   COSTS 

§  158.  Statutory  provisions;  §  3229. 

159.  When  one  of  several  defendants  obtains  judgment. 

160.  Where  attorney  for  defendant  is  public  official. 

§  158.  Statutory  provisions;  §  3229. 

Defendant  is  entitled  to  costs  upon  the  rendering  of 
a  final  judgment  when  the  plaintiff  is  not.  "But  where 
in  such  an  action  against  two  or  more  defendants,  the 
plaintiff  is  entitled  to  costs  against  one  or  more,  but  not 
against  all  of  them,  none  of  the  defendants  are  entitled 
to  costs,  of  course.  In  that  case  costs  may  be  awarded, 
in  the  discretion  of  the  court,  to  any  defendant,  against 
whom  the  plaintiff  is  not  entitled  to  costs,  where  he  did 
not  unite  in  an  answer,  and  was  not  united  in  interest, 
with  a  defendant,  against  whom  the  plaintiff  is  entitled 
to  costs." 

§  159.  When  one  of  several  defendants  obtains  judgment. 

So  that,  where  a  complaint  has  been  dismissed  as  to 
one  defendant  who  answered  separately,  costs  are  in 
the  discretion  of  the  court,  and  judgment  entered  in  such 
case  including  costs  where  none  have  been  awarded, 
should  be  corrected  on  motion.  Ljunquist  v.  Hartmetz, 
54  Misc.  87. 

In  an  action  against  endorsers  and  maker  of  a  note 
wherein  the  maker  defaults  and  the  endorsers,  as  de- 

86 


DEFENDANT  ENTITLED  TO  COSTS  87 

fendants,  answer  and  obtain  judgment,  they  cannot  tax 
costs  without  an  order  of  the  court  allowing  them  to  do 
so.  Bruck  v.  Lambeck,  63  Misc.  185. 

§  160.  Where  attorney  for  defendant  is  public  official. 

The  fact  that  the  defendants  were  represented  by  the 
corporation  counsel  who  receives  no  compensation  except 
an  official  salary,  is  of  no  effect.  The  defendants  having 
succeeded  in  the  action  their  right  to  costs  of  the  action 
is  statutory.  Stearns  v.  Titus,  114  A.  D.  197. 


CHAPTER  XX 

PARTIAL  RECOVERY  BY  BOTH  PARTIES  IN  SUIT  OF  SEVERAL 
CAUSES   OF  ACTION 

§  161.  Statutory  provisions;  §  3234. 

162.  Allowance  of  costs  to  both  plaintiff  and  defendant. 

163.  When  defendant  not  entitled  to  costs. 

164.  When  counterclaim  is  interposed  by  defendant,  pre- 

vailing party  entitled  to  costs. 

§  161.  Statutory  provisions;  §  3234. 

Section  3229  of  the  Code  reads  in  part,  "The  defend- 
ant is  entitled  to  costs,  of  course,  upon  the  rendition  of 
final  judgment  in  an  action  specified  in  the  last  section 
(section  3228)  unless  the  plaintiff  is  entitled  to  costs  as 
therein  specified." 

Section  3234  of  the  Code  provides  that  "In  an  action 
specified  in  section  3228  of  this  act  wherein  the  complaint 
sets  forth  separately  two  or  more  causes  of  action  upon 
which  issues  of  fact  are  joined,  if  the  plaintiff  recovers 
upon  one  or  more  issues  and  the  defendant  upon  the 
others,  each  party  is  entitled  to  costs  against  the  ad- 
verse party,  unless  it  is  certified  that  the  substantial 
cause  of  action  was  the  same  on  each  issue,  in  which 
case  the  plaintiff  only  is  entitled  to  costs.  Costs  to 
which  a  party  is  so  entitled  must  be  included  in 
the  final  judgment  by  adding  them  to  or  offset- 
ting them  against  the  sum  awarded  the  prevailing 
party  *  *  *". 

88 


PARTIAL  RECOVERY  BY  BOTH  PARTIES    89 

§  162.  Allowance  of  costs  to  both  plaintiff  and  defendant. 

It  is  necessary  for  defendant,  in  order  to  be  allowed 
costs  within  the  foregoing  provisions  of  the  Code,  to 
obtain  an  affirmative  judgment  in  his  favor  as  to  one  or 
more  of  the  causes  of  action  alleged  in  the  complaint, 
in  the  form  of  a  verdict  or  finding  that  will  have  the 
effect  of  disposing  of  the  cause  of  action  and  be  conclusive 
on  the  parties.  A  mere  dismissal  of  complaint,  however, 
or  a  nonsuit  is  not  sufficient. 

Where,  therefore,  causes  of  action  were  separately 
stated,  and  issues  of  fact  were  taken  as  to  each  of  them, 
and  the  jury  was  instructed  to  render  a  verdict  for  de- 
fendant as  to  one  cause  of  action  and  the  plaintiff  suc- 
ceeded as  to  the  other  cause  of  action,  all  the  provisions 
for  two  bills  of  costs  contained  in  section  3234  were 
present,  for  in  regard  to  each  of  such  cause  of  action 
there  was  a  decision  by  a  proper  tribunal  of  a  question 
of  fact  which  was  conclusive  on  the  parties  to  the  action, 
and  the  defendant  was  allowed  to  tax  his  bill  of  costs. 
Browning  v.  Lake  Erie  &  W.  R.  R.  Co.,  64  Hun,  513. 

Same  ruling  obtained  where  an  action  was  brought  on 
two  separate  notes  and  the  Statute  of  Limitations  having 
been  pleaded  as  to  them,  the.  court  decided  in  the  de- 
fendant's favor  as  to  one  of  them  and  the  plaintiff  having 
obtained  judgment  as  to  the  other,  the  court  allowed 
defendant  as  well  as  the  plaintiff  to  tax  his  bill  of  costs. 
The  fact  that  the  court  decided  in  defendant's  favor, 
instead  of  the  jury  by  direction  of  the  court  is  not  con- 
trolling. There  was  a  finding  in  favor  of  defendant  on 
that  issue.  Blashfield  v.  Blashfield,  41  Hun,  249. 

Thus  also  in  an  action  in  replevin  where  the  jury  found 
in  favor  of  plaintiff  as  to  part  of  the  property  and  for 


90  TAXATION  OF  COSTS 

defendant  as  to  the  remainder,  assessing  the  value  of 
defendant's  part,  it  was  held  that  the  defendant  was  en- 
titled to  costs.  Johnson  v.  Fellows,  6  Hill,  353. 

§  163.  When  defendant  not  entitled  to  costs. 

Where  the  plaintiff  in  his  complaint  sets  forth  three 
causes  of  action  as  to  two  of  which  he  is  nonsuited  and 
succeeds  as  to  the  third,  the  defendant  is  not  entitled  to 
tax  costs.  The  appellate  court  in  its  opinion  says  that, 
"In  such  cases  if  defendant  intends  to  claim  costs,  he 
should  ask  for  an  affirmative  verdict  or  finding  in  his 
favor  that  will  have  the  effect  of  disposing  of  the  cause 
of  action  as  to  which  the  plaintiff  has  failed. 
It  is  only  when  he  recovers  upon  one  or  more  of  the  causes 
of  action  that  costs  follow,  and  in  the  absence  of  an  actual 
verdict,  finding,  or  judgment  in  his  favor  this  condition 
is  not  satisfied."  Burns  v.  D.,  L.  &  W.  R.  R.  Co.,  63 
Hun,  19,  aff'd  135  N.  Y.  268;  Crossley  v.  Cobb,  42  Hun, 
166;  Moosbrugge  v.  Kaufman,  7  A.  D.  380;  Reilly  v.  Lee, 
33  A.  D.  201. 

In  Reilly  v.  Lee  (supra)  two  causes  of  action  were  set 
up  in  a  complaint.  The  referee  before  whom  the  case 
was  tried  nonsuited  the  plaintiff  as  to  one  and  rendered 
a  general  report  in  his  favor  as  to  the  other  for  a  sum 
of  money  upon  which  a  judgment  was  entered,  but 
there  was  not  an  affirmative  verdict  or  finding  or  judg- 
ment in  favor  of  defendant.  The  latter  was  not  allowed 
to  tax  costs  because  he  had  not  "recovered"  upon  any 
of  the  issues. 

Nor  was  the  defendant  allowed  to  tax  costs  upon  the 
dismissal  of  the  complaint  as  to  one  of  two  causes  of 
action  in  a  suit  for  libel,  the  plaintiff  having  recovered 


PARTIAL  RECOVERY  BY  BOTH  PARTIES    91 

on  the  other.    McCarthy  v.  Innis,  61  Hun,  354;  Briggs 
v.  Allen,  4  Hill,  538. 

§  164.  When  counterclaim  is  interposed  by  defendant, 
prevailing  party  entitled  to  costs. 

The  rule,  however,  applicable  to  the  allowance  of  costs 
where  defendant  interposes  a  counterclaim  is  different. 
Costs  in  that  case  follow  the  allowance  of  general  costs. 
The  prevailing  party  or  the  party  obtaining  an  affirma- 
tive judgment  in  the  action,  is  entitled  to  them. 

A  defendant  prevails  in  an  action  when  he  defeats 
the  plaintiff's  claim  either  by  disproving  it  or  by  estab- 
lishing a  counterclaim  equal  to  or  greater  than  the 
demand  in  the  complaint.  Rohrs  v.  Rohrs,  72  Misc.  108. 

Therefore,  although  a  plaintiff  prevails  upon  the  cause 
of  action  alleged  in  the  complaint,  nevertheless,  if  an 
offset  equal  to  or  greater  than  the  amount  of  the  claim 
is  established,  the  defendant  and  not  the  plaintiff  is  the 
prevailing  party  in  the  action  and  the  former  is  entitled 
to  tax  costs.  Rohrs  v.  Rohrs,  72  Misc.  108.  "Costs 
follow  the  judgment.  The  party  in  whose  favor  judg- 
ment is  to  be  entered  is  the  prevailing  party.  *  *  * 
It  matters  not  that  the  defendant  has  failed  to  establish 
his  counterclaim  that  he  has  set  up,  he  is  still  entitled  to 
judgment  and  to  costs  if  the  plaintiff  does  not  get  judg- 
ment." Grain  v.  Holcomb,  2  Hilton,  269. 

To  the  same  effect  in  Thayer  v.  Holland,  63  How.  Pr. 
180,  and  Whitlegge  v.  DeWitt,  12  Daly,  319,  where  it 
was  held  that  although  the  defendant  did  not  suffi- 
ciently establish  the  counterclaim,  nevertheless,  the  plain- 
tiff having  failed  to  establish  his  right  to  recovery,  the  de- 
fendant was  the  prevailing  party  and  entitled  to  costs. 


92  TAXATION  OF  COSTS 

Section  3234  of  the  Code  has  no  application  to  a  case  of 
this  kind. 

In  an  action  on  contract  defendant  denied  the  con- 
tract and  interposed  a  counterclaim.  On  the  trial  of 
the  action  the  jury  brought  in  a  verdict  for  defendant  on 
the  cause  of  action  and  a  verdict  for  plaintiff  on  the 
counterclaim.  The  finding  of  the  jury  for  plaintiff  on 
the  counterclaim  had  the  effect  merely  of  disallowing 
the  counterclaim,  and  the  finding  by  the  jury  on  the  main 
cause  of  action  for  defendant  adjudged  him  the  prevail- 
ing party  in  the  action  and  entitled  him  alone  to  tax 
costs.  Rohrs  v.  Rohrs,  72  Misc.  108;  Ury  v.  Wilde,  3 
N.  Y.  S.  791. 

Where,  however,  a  counterclaim  is  interposed  and  the 
jury  finds  for  plaintiff  on  the  cause  of  action  and  for  de- 
fendant on  the  counterclaim,  and  after  deducting  the 
counterclaim  the  plaintiff  is  entitled  to  $150,  held  that 
there  being  an  affirmative  judgment  for  the  plaintiff 
the  defendant  cannot  tax  costs.  The  plaintiff,  however, 
cannot  tax  costs  if  the  action  was  brought  in  the  City 
Court  and  the  recovery  was  less  than  two  hundred  fifty 
dollars  (section  3228,  subdivision  5).  Auerbach  v.  Ramor, 
L.  J.  Feb.  20,  1915. 


CHAPTER  XXI 

DRAWING  INTERROGATORIES  AND  TAKING  DEPOSITIONS 

§  165.  Statutory  provisions  as  to  drawing  interrogatories. 

166.  Only  one  fee  of  ten  dollars  taxable. 

167.  Where  more  than  one  fee  may  be  charged. 

168.  Statutory  provisions  as  to  taking  depositions. 

169.  Fees  are  statutory  and.  follow  issuance  of  commission. 

170.  Deposition  by  stipulation. 

171.  Fee  follows  general  costs. 

172.  One  fee  allowable  where  one  order  is  issued. 

173.  Where  several  parties  obtain  orders. 

174.  Allowance  of  costs  although  examination  is  waived. 

175.  Costs  allowed  although  order  was  obtained  by  adverse 

party. 

176.  No  allowance  of  costs  where  officer  other  than  com- 

missioner takes  deposition. 

§  165.  Statutory  provisions  as  to  drawing  interrogatories. 

Sec.  3251,  subdivision  3,  par.  3.  For  drawing 
interrogatories  to  be  annexed  to  a  commission,  or 
to  letters  rogatory,  issued  as  prescribed  in  sections 
888,  912,  913,  and  3171  of  this  act,  ten  dollars. 

Under  this  section  of  the  Code  a  party  is  entitled  to 
ten  dollars  for  drawing  interrogatories  although  they 
may  never  have  been  served.  Evans  v.  Silberman,  7 
A.  D.  139. 

§  166.  Only  one  fee  of  ten  dollars  taxable. 

But  one  charge  of  ten  dollars  can  be  made  for  all  in- 

93 


94  TAXATION  OF  COSTS 

terrogatories  annexed  to  a  commission  although  a  num- 
ber of  witnesses  are  named  therein  and  separate  inter- 
rogatories are  drawn  for  each.  O'Brien  v.  Commercial 
Fire  Insurance  Co.,  38  N.  Y.  Sup.  Ct.  Rep.  4;  Burns  v~ 
D.,  L.  &  W.  R.  R.  Co.,  135  N.  Y.  268. 

§  167.  Where  more  than  one  fee  may  be  charged. 

Where  separate  commissions  must  issue  for  the  exam- 
ination of  witnesses  in  different  localities,  the  party 
successful  in  the  action  is  entitled  to  tax  in  his  bill  of 
costs  the  sum  of  ten  dollars  each  for  drawing  the  in- 
terrogatories attached  to  each  commission.  Rose  v~ 
Swarthout,  73  Misc.  583. 

§  168.  Statutory  provisions  as  to  taking  depositions. 

Sec.  3251,  subdivision  3,  par.  2.  For  taking  the 
deposition  of  a  witness  or  a  party  as  prescribed 
in  section  870,  section  871,  or  section  893  of  this  act, 
ten  dollars. 

Section  872  and  those  following  set  forth  under 
what  conditions  the  court  will  order  a  deposition 
to  be  taken. 

Section  879  allows  a  deposition  to  be  taken  on 
consent  of  the  parties,  upon  a  stipulation  in  writing, 
the  same  to  be  either  orally  or  upon  interrogatories 
to  be  agreed  upon  in  like  manner. 

§  169.  Fees  are  statutory  and  follow  issuance  of  com- 
mission. 

Where  a  commission  has  been  issued  the  statutory 
allowance  follows,  and  neither  the  court  nor  the  taxing 
officer  can  institute  an  inquiry  as  to  the  necessity  there- 


INTERROGATORIES  AND  DEPOSITIONS  95 

for.  The  party  entitled  to  the  general  costs  in  the  ac- 
tion is  entitled  to  tax  them.  Burns  v.  D.,  L.  &  W.  R.  R. 
Co.,  135  N.  Y.  268. 

§  170.  Deposition  by  stipulation. 

Where  the  parties  to  an  action,  instead  of  taking  the 
deposition  of  a  party  or  witness  under  an  order  of  the 
court,  stipulate  in  writing  under  section  879  of  the  Code, 
that  such  deposition  be  taken,  the  successful  party  is 
entitled  to  tax  costs  for  the  deposition.  Smith  v.  Servis, 
59  Hun,  552,  disapproving  Newman  v.  Greif,  3  Civ.  Pro. 
Rep.  362. 

§  171.  Fee  follows  general  costs. 

The  allowance  under  the  statute  belongs  to  the  party 
entitled  to  the  general  costs  in  the  action.  So  that, 
although  the  plaintiff  did  not  succeed  as  to  the  cause  of 
action  for  which  he  obtained  the  deposition,  he  was  never- 
theless allowed  to  tax  ten  dollars  because  he  was  entitled 
to  the  general  costs  of  the  action.  Burns  v.  D.,  L.  &  W. 
R.  R.  Co.,  135  N.  Y.  268. 

§  172.  One  fee  allowable  where  one  order  is  issued. 

Where  an  order  was  issued  for  the  examination  of 
several  witnesses  and  three  of  them  were  examined,  only 
one  fee  of  ten  dollars  was  allowed.  Burns  v.  D.,  L.  &  W. 
R.  R.  Co.,  135  N.  Y.  268. 

§  173.  Where  several  parties  obtain  orders. 

Where  several  plaintiffs  obtain  orders  to  examine  the 
same  defendant  and  although  the  plaintiffs  are  repre- 
sented by  the  same  attorney  and  the  defendant  is  exam- 
ined only  once,  nevertheless,  if  the  defendant  is  successful 


96  TAXATION  OF  COSTS 

in  the  action,  he  is  entitled  to  tax  ten  dollars  for  each 
order  so  obtained.    Steiner  v.  Ainsworth,  53  How.  Pr.  31. 

§  174.  Allowance  of  costs  although  examination  is  waived. 
A  party  is  entitled  to  the  statutory  allowance  for  at- 
tending an  examination  of  a  party  before  trial  pursuant 
to  an  order  or  stipulation  where  such  party  attends  ready 
to  be  examined,  although  the  examination  is  waived  and 
is  never  had  thereafter.  Steiner  v.  Ainsworth,  53  How. 
Pr.  Rep.  31. 

§  176.  Costs  allowed  although  order  was  obtained  by 
adverse  party. 

The  successful  party  is  entitled  to  tax  the  costs  for 
the  taking  of  a  deposition  before  trial  although  the  order 
for  the  deposition  was  obtained  by  the  adverse  party. 
So  held  where  the  plaintiff  obtained  the  order  and  the 
defendant  was  allowed  to  tax  the  costs.  Steiner  v. 
Ainsworth,  53  How.  Pr.  Rep.  31. 

§  176.  No  allowance  when  officer  other  than  commis- 
sioner takes  deposition. 

Where  a  deposition  was  ordered  to  be  taken  but  the 
court  failed  to  appoint  a  commissioner,  and  a  notary 
public  did  nothing  but  administer  the  oaths,  it  was  held 
improper  to  tax  his  fees  as  a  commissioner.  Valk  v. 
Erie  R.  R.  Co.,  128  A.  D.  470. 

Where  there  was  no  proof  before  the  clerk  that  com- 
missioner's fees  in  taking  the  deposition  were  paid  or 
any  obligation  to  pay  them  incurred,  they  were  im- 
properly taxed.  Burns  v.  D.,  L.  &  W.  R.  R.  Co.,  135 
N.  Y.  268. 


CHAPTER  XXII 

ADDITIONAL   ALLOWANCE    TO    PLAINTIFF    ON 
FORECLOSURE,    ETC. 

177.  Statutory  provisions. 

178.  How  value  of  property  is  fixed. 

179.  Limitation  of  allowance  to  two  thousand  dollars  de- 

fined. 

177.  Statutory  provisions. 

Sec.  3252.  Where  the  action  is  brought  to  foreclose 
a  mortgage  upon  real  property;  or  for  the  partition  of 
real  property;  or  to  procure  an  adjudication  upon  a 
will  or  other  instrument  in  writing;  or  to  compel  a  de- 
termination of  a  claim  to  real  property;  or  where  in 
any  action,  a  warrant  of  attachment  against  prop- 
erty has  been  issued;  the  plaintiff,  if  a  final  judgment 
is  rendered  in  his  favor,  and  he  recovers  costs,  is  en- 
titled to  recover  in  addition  to  the  costs  prescribed  in 
the  last  section  *  *  *: 

Upon  a  sum  not  exceeding  two  hundred  dollars, 
ten  per  centum. 

Upon  an  additional  sum,  not  exceeding  four  hun- 
dred dollars,  five  per  centum. 

Upon  an  additional  sum,  not  exceeding  one  thou- 
sand dollars,  two  per  centum  *  *  * 

Sec.  3253.  In  an  action  brought  to  foreclose  a 
mortgage  upon  real  property,  or  for  the  partition  of 
real  property,  or  in  a  difficult  and  extraordinary 

97 


98  TAXATION  OF  COSTS 

case,  *  ,  the  court  may  also  in  its  discretion, 

award  to  any  party  a  further  sum  as  follows: 

1 .  In  an  action  to  foreclose  a  mortgage,  a  sum  not 
exceeding  two  and  one-half  per  centum  upon  the  sum 
due,  or  claimed  to  be  due  upon  the  mortgage,  nor 
the  aggregate  sum  of  two  hundred  dollars. 

2.  In  any  action,  or  special  proceeding,  *, 
a  sum  not  exceeding  five  per  centum  upon  the  sum  re- 
covered or  claimed,  or  the  value  of  the  subject- 
matter  involved. 

Sec.  3254.  But  all  the  sums  awarded  to  the  plain- 
tiff cannot  exceed,  in  the  aggregate,  two 
thousand  dollars. 

§  178.  How  value  of  property  is  fixed. 

For  the  purpose  of  fixing  the  allowance  which  may  be 
made  to  the  plaintiff,  in  accordance  with  the  foregoing 
provisions  of  the  Code,  the  value  of  the  subject-matter 
involved  is  the  value  of  the  whole  property,  and  for  the 
purpose  of  fixing  the  allowance  to  any  defendant,  the 
value  of  that  particular  defendant's  interest  is  the  value 
of  the  subject-matter  involved.  Warren  v.  Warren,  203 
N.  Y.  250. 

In  an  action  for  partition  the  "  subject-matter  "  involved 
is  the  property  partitioned  and  it  is  its  value,  and  not 
upon  the  plaintiff's  share  in  it  that  extra  allowance 
should  be  computed.  Doremus  v.  Crosby,  66  Hun,  125. 

In  an  action  to  restrain  the  use  of  a  trade  name  an  ex- 
tra allowance  is  to  be  computed  not  on  the  mere  amount 
of  the  damages  recovered  but  on  the  value  of  the  trade- 
mark. Such  allowance  shall  be  within  the  limits  of  sec- 
tion 3254  of  the  Code.  Perkins  v.  Heert,  14  Misc.  425. 


FORECLOSURE,  ETC.  99 

§  179.  Limitation  of  allowance  to  two  thousand  dollars 

defined. 

The  limitation  that  in  no  event  shall  the  allowance  to 
a  plaintiff,  or  to  a  party,  or  two  or  more  parties  on  the 
same  side  exceed  two  thousand  dollars,  means  that  the 
allowance  to  a  plaintiff  cannot  exceed  two  thousand 
dollars,  and  the  allowance  to  all  defendants  considered  as 
a  class  or  a  "side"  shall  not  exceed  two  thousand  dol- 
lars. Warren  v.  Warren,  203  N.  Y.  250;  Senter  v. 
Petheram,  64  Misc.  294.  Same  ruling  applies  also  to  an 
allowance  of  counsel  fees  in  proceedings  for  the  acquisi- 
tion of  land.  Matter  of  Simmons,  71  Misc.  152;  People 
ex  rel.  Armstrong  v.  Quigley,  75  Misc.  151.  . 


CHAPTER  XXIII 

WHEN    DEFENDANT    ENTITLED    TO    INCREASED    COSTS 

180.  Statutory  provisions. 

181.  Increased  costs  allowed  in  actions  against  sheriff. 

182.  Not  allowed  in  actions  on  bond  of  officer. 

183.  Writ  of  certiorari  not  within  the  section. 

184.  Allowance  of  increased  costs  includes  costs  on  appeal. 

180.  Statutory  provisions. 

Sec.  3258.  In  either  of  the  following  cases  a  de- 
fendant, in  whose  favor  a  final  judgment  is  rendered, 
in  an  action  wherein  the  complaint  demands  judg- 
ment for  a  sum  of  money  only,  or  to  recover  a 
chattel;  or  a  final  order  is  made,  in  a  special  pro- 
ceeding instituted  by  a  State  writ,  is  entitled  to  re- 
cover the  costs,  prescribed  in  section  3251  of  this 
act,  and,  in  addition  thereto,  one-half  thereof: 

1 .  Where  the  defendant  is  or  was  a  public  officer 

appointed   or    elected     *     *     *     to    per- 
form the  duties  of  such  an  officer;  and  the  action 
*     *     *    was  brought  by  reason  of  an  act    *     * 
or  an  alleged  omission  by  him,  to  do  an  act,  which 
it  was  his  official  duty  to  perform. 

2.  Where  the  action  was  brought  against   the 
defendant,     *  by    command    of    such    of- 
ficer                    touching  the  duties  of  the  office  or 
appointment. 

3.  Where  the  action  was  brought  against  the  de- 


INCREASED  COSTS  101 

fendant,  for  taking  a  distress,  making  a  sale,  or 
doing  any  other  act,  by  or  under  color  of  authority 
of  a  statute  of  the  State. 

But  this  section  does  not  apply,  where  an  of- 
ficer *  unites  in  his  answer  with  a  person 
not  entitled  to  such  additional  costs. 

Sec.  3259.  The  increase  specified  in  the  last  sec- 
tion, does  not  extend  to  the  disbursements;  *  *  *. 

§  181.  Increased  costs  allowed  in  an  action  against 
sheriff. 

Where  an  action  is  brought  against  a  sheriff  to  re- 
cover a  sum  of  money  or  a  chattel  by  reason  of  some 
act  done  by  him  by  virtue  of  his  office  and  a  final  judg- 
ment is  rendered  in  his  favor,  he  has  an  absolute  right  to 
the  additional  costs  given  him  by  the  statute.  Smith  v. 
Cooper,  30  Hun,  395;  also  allowed  to  a  policeman,  En- 
right  v.  Shalvey,  i  City  Ct.  Rep.  58. 

So  also  in  an  action  where  the  plaintiff  claims  that 
the  sheriff  collected  on  an  execution  more  than  sufficient 
to  satisfy  the  same  and  failed  to  pay  over  the  surplus  to 
him  and  sought  to  recover  such  surplus,  the  case  is  within 
section  3258  of  the  Code;  the  sheriff  if  successful  is 
entitled  to  double  costs.  Van  Gelden  v.  Hallenbeck,  15 
Civ.  Pro.  Rep.  333. 

§  182.  Not  allowed  in  action  on  bond  of  officer. 

But  an  action  brought  by  a  sheriff  against  a  deputy 
and  the  sureties  on  the  bond  to  recover  for  a  breach  of  the 
conditions,  is  not  an  action  in  which  defendants,  if  suc- 
cessful, are  entitled  to  increased  costs.  Hall  v.  Dusen- 
bury,  38  Hun,  125. 


102  TAXATION  OF  COSTS 

§  183.  Writ  of  certiorari  not  within  the  section. 

Subdivision  i  of  section  3258  of  the  Code  does  not  ap- 
ply to  proceedings  instituted  by  writ  of  certiorari.  Such 
costs  are  regulated  by  section  2143  of  the  Code  authoriz- 
ing the  court  to  allow  fifty  dollars  and  disbursements. 
People  ex  rel.  Hall  v.  Town  Auditors,  42  A.  D.  250. 

§  184.  Allowance  of  increased  costs  includes  costs  on 

appeal. 

The  additional  allowance  given  to  public  officers  is 
not  limited  to  courts  of  original  jurisdiction  but  extends 
to  costs  of  appeal.  Wood  v.  Excise  Comm.,  9  Misc. 
507;  Burkle  v.  Luce,  i  N.  Y.  239;  Porter  v.  Cobb,  25  Hun, 
184. 


CHAPTER  XXIV 

OFFER  OF  JUDGMENT 

185.  Statutory  provisions. 

186.  Plaintiff's  acceptance  of  offer. 
186a.  When  offer  must  be  made. 
186b.  Withdrawal  of  offer. 

187.  Recovery  by  plaintiff  in  excess  of  offer. 
187a.  When  counterclaim  is  interposed. 
187b.  On  foreclosure  of  mechanic's  lien. 

188.  When  defendant  entitled  to  costs. 

189.  When  recovery  is  reduced  so  as  to  be  less  than  the 

offer. 

190.  Confession  of  judgment. 

185.  Statutory  provisions. 

Sec.  732.    A    tender  does    not    avail 

the  defendant,  unless  the  money  is  accepted  or  is 
paid  into  court,  and  notice  thereof  in  writing  served 
upon  the  plaintiff's  attorney  before  the  trial  and 
within  ten  days  after  the  tender.  If  the  plaintiff 
takes  out  the  amount  paid  in,  he  accepts  the  tender. 

Sec.  733.  If  it  appears,  upon  the  trial  that  the 
sum  so  tendered  was  sufficient  to  pay  the  plain- 
tiff's demand,  or  to  make  amends  for  the  injury,  and 
also  to  pay  the  costs  of  the  action,  to  the  time  of  the 
tender,  the  plaintiff  cannot  recover  costs  or  interest, 
from  the  time  of  the  tender,  but  must  pay  the  de- 
fendant's costs  from  that  time. 

737.    If  the  plaintiff  does  not  accept  the 


104  TAXATION  OF  COSTS 

offer,  he  cannot  prove  it  upon  the  trial.  But  if  the 
damages,  awarded  to  him,  do  not  exceed  the  sum 
offered,  the  defendant  is  entitled  to  recover  the 
expenses,  necessarily  incurred  by  him  in  prepar- 
ing for  trial  of  the  question  of  damages.  The  ex- 
penses must  be  ascertained,  and  the  amount  thereof 
determined  by  the  judge,  or  the  referee,  by  or  be- 
fore whom  the  cause  was  tried. 

Sec.  738.  The  defendant  may  before  the  trial,, 
serve  upon  the  plaintiff's  attorney,  a  written  offer, 
to  allow  judgment  to  be  taken  against  him,  for  a 
sum,  or  property,  or  to  the  effect,  therein  specified, 
with  costs.  ***.if  the  plaintiff,  within  ten 
days  thereafter,  *  *  *  accepts  the  offer  *  *  * 
the  clerk  must  enter  judgment  accordingly  *  *  *. 
If  notice  of  acceptance  is  not  thus  given  *  *  * 
(and)  if  the  plaintiff  fails  to  obtain  a  more  favor- 
able judgment,  he  cannot  recover  costs  from  the  tune 
of  the  offer,  but  must  pay  costs  from  that  time. 

§  186.  Plaintiff's  acceptance  of  offer. 

In  accordance  with  the  statutory  provisions,  there- 
fore, the  plaintiff  is  entitled  to  costs  and  disbursements 
only  up  to  the  time  of  the  acceptance  of  the  offer  and 
such  disbursements  that  may  be  incurred  in  entering  up 
judgment.  Allen  v.  Glass,  60  Hun,  546;  Pomeroy  v. 
Huhlin,  7  How.  Pr.  161.  See  also  Hawley  v.  Davis,  5 
Hun,  642.  He  is  also  entitled  to  the  costs  up  to  the 
time  of  the  offer  although  on  the  trial  of  the  action  he  does 
not  obtain  a  more  favorable  judgment  than  the  offer. 
Mangin  v.  Dinsmore,  47  How.  Pr.  n;  Hirshspring  z>. 
Boe,  20  Abb.  N.  C.  402. 


OFFER  OF  JUDGMENT  105 

The  offer  must  be  with  costs.  Ranney  v.  Russell,  3 
Duer,  689;  Loring  v.  Morrison,  25  A.  D.  139.  Offer 
must  be  definite.  Post  v.  N.  Y.  Central  R.  R.  Co.,  12 
How.  Pr.  552.  And  without  condition.  Pinckney  v. 
Childs,  7  Bosw.  660;  Hanna  v.  Dexter,  15  Abb.  135. 

§  186a.  When  offer  must  be  made. 

The  offer  of  judgment  must  be  made  ten  days  before 
the  trial,  otherwise,  defendant  cannot  take  advantage  of 
the  provisions  of  the  statute.  Pomeroy  v.  Huhlin,  7 
How.  Pr.  161 ;  Walker  z>.  Johnson,  8  How.  Pr.  240.  Plain- 
tiff cannot,  however,  accept  the  offer  after  he  elects  to 
go  to  trial.  Corning  v.  Radley,  25  Misc.  318;  Guttroff 
D.  Wallach,  3  Misc.  136. 

Notice  of  withdrawal  of  answer  given  less  than  ten 
days  before  trial  cannot  be  construed  as  an  offer  of 
judgment.  Ferine  v.  Wiggins,  18  Civ.  Pro.  Rep.  172. 

§  186b.  Withdrawal  of  offer. 

An  offer  of  judgment  made  by  defendant  cannot  be 
withdrawn  before  the  expiration  of  the  ten  days  within 
which  plaintiff  may  accept  same.  Hackett  v.  Edwards, 
22  Misc.  659;  McVicar  v.  Keating,  19  A.  D.  581. 

§  187.  Recovery  by  plaintiff  in  excess  of  offer. 

The  plaintiff  is  entitled  to  full  costs  where  he  recovers 
any  amount  in  excess  of  the  offer  of  judgment.  There- 
fore where  the  plaintiff  brings  suit  on  two  causes  of  ac- 
tion and  he  recovers  judgment  on  one  cause  of  action 
the  exact  amount  of  the  offer  of  defendant  and  only  six 
cents  damages  on  the  other,  he  is  entitled  to  costs.  Day- 
ton v.  Parke,  67  Hun,  137. 


io6  TAXATION  OF  COSTS 

§  187a.  When  counterclaim  is  interposed. 

Plaintiff's  recovery  was  also  held  to  be  more  favorable 
than  the  offer  although  the  amount  so  recovered  was 
97  cents  less  than  the  offer  but  it  extinguished  a  counter- 
claim of  $25.  Smith  v.  Sheldon,  94  A.  D.  497.  When  the 
offer  fails  to  include  counterclaims  of  defendant,  the 
plaintiff  is  entitled  to  costs  although  he  recovers  a  less 
amount.  Kantz  v.  Vanderburgh,  28  N.  Y.  S.  1046.  But 
when  defendant  makes  his  offer  of  judgment  before  he 
puts  in  an  answer,  and  the  plaintiff  recovers  less  than 
the  offer,  defendant  is  entitled  to  costs  from  the  time  of 
offer  although  counterclaims  arising  out  of  the  transac- 
tion are  extinguished,  which,  together  with  the  recovery, 
would  exceed  the  offer.  Dowd  v.  Smith,  8  Misc.  619. 

Where,  however,  an  action  is  brought  to  foreclose  a 
mechanic's  lien,  and  defendant  offers  a  sum  of  money  and 
costs  only,  acceptance  of  such  a  tender  by  the  plaintiff  will 
not  permit  him  to  enter  judgment  of  foreclosure,  and 
consequently  when  the  plaintiff  recovers  judgment  es- 
tablishing the  same  amount  of  lien  and  interest  and  also 
in  addition  a  direction  to  sell  the  property  and  entry  of 
judgment  for  a  deficiency,  such  recovery  is  a  more  fa- 
vorable one  and  the  plaintiff  is  allowed  full  costs.  Mc- 
Nally  v.  Rowan,  101  A.  D.  342,  aff'd  181  N.  Y.  556. 

§  187b.  On  foreclosure  of  mechanic's  lien. 

In  an  action  to  foreclose  a  mechanic's  lien,  an  offer 
was  made  to  allow  judgment  "establishing  the  amount 
of  plaintiff's  lien"  at  a  certain  sum  and  costs,  defendant 
was  entitled  to  costs  if  the  offer  was  not  accepted  and 
plaintiff  failed  to  recover  a  larger  sum.  Pfister  v.  Stumm, 
7  Misc.  526. 


OFFER  OF  JUDGMENT  107 

Where  plaintiff  accepts  an  offer  of  judgment  for  less 
than  fifty  dollars  the  statutory  provisions  in  section  3228 
apply.  Johnson  v.  Sager,  10  How.  Pr.  552. 

§  188.  When  defendant  entitled  to  costs. 

Defendant  is  entitled  to  costs  subsequent  to  the  offer 
when  the  recovery  by  the  plaintiff  is  not  greater  than 
the  offer.  Smith  v.  Kerr,  i  N.  Y.  S.  454.  Similarly 
held  that  where  the  plaintiff  proceeds  with  an  action 
after  a  tender  and  deposit  of  the  amount  claimed,  he  is 
liable  for  costs  if  he  recovers  less  than  the  amount  of 
the  tender.  Heller  .v.  Katz,  62  Misc.  266;  Beil  v.  Su- 
preme Council,  42  A.  D.  168. 

This  is  so  notwithstanding  that  the  court  ordered 
judgment  for  plaintiff  "with  costs."  Kiernan  v.  Agri- 
cultural Ins.  Co.,  3  A.  D.  26. 

Interest  accruing  after  the  offer  is  made  cannot  be 
added  so  as  to  make  the  recovery  of  plaintiff  more  favor- 
able. Johnston  v.  Catlin,  57  N.  Y.  652.  Nor  can  the 
judgment  of  plaintiff  be  regarded  "more  favorable"  al- 
though the  amount  is  more  than  the  sum  offered,  if  that 
sum  together  with  interest  to  date  of  judgment  exceeds 
the  amount  recovered.  Tillman  v.  Keane,  i  Abb.  N.  S. 
23;  Hirschspring  v.  Boe,  13  Civ.  Pro.  Rep.  125. 

One  partner  cannot  make  an  offer  of  judgment  in 
behalf  of  the  other  partner.  Garrison  v.  Garrison,  67 
How.  Pr.  271.  When  it  is  made,  however,  it  does  not 
bar  any  remedies  against  the  other  joint  debtors.  Kan- 
trowitz  v.  Kulle,  13  Civ.  Pro.  Rep.  74.  In  a  suit  against 
a  copartnership,  one  cannot  make  an  offer  without  the 
approval  of  the  other.  Rich  v.  Roberts,  18  Civ.  Pro. 
Rep.  205;  Everson  v.  Gehrman,  10  How.  Pr.  301. 


io8  TAXATION  OF  COSTS 

An  offer  of  judgment  by  one  of  two  defendants  sued 
for  a  firm  debt,  is  not  a  sufficient  offer,  although  the  re- 
covery obtained  against  both  defendants  on  the  trial  is 
less  than  the  offer  made  because  a  judgment  against 
both  defendants  is  a  more  favorable  one  and  the  plain- 
tiff was  held  entitled  to  full  costs.  Bannerman  v. 
Quackenbush,  17  Abb.  N.  C.  103;  Rich  v.  Roberts,  18 
N.  Y.  Civ.  Pro.  Rep.  205.  But  where  one  defendant  is  in 
default  and  the  other  defendant  makes  a  tender  of 
judgment,  such  offer  is  a  good  one  and  plaintiff  must  re- 
cover a  larger  sum  to  entitle  him  to  costs  subsequent  to 
the  offer.  LaFarge  v.  Chilson,  3  Sandford,  752. 

§  189.  When  recovery  is  reduced  so  as  to  be  less  than 
offer. 

Where  an  appellate  court  reduces  a  judgment  of  the 
court  below  and  modifies  it  so  that  it  is  less  than  the 
offer  made  before  trial,  defendant  is  entitled  to  costs 
subsequent  to  the  offer  same  as  though  judgment  had 
been  rendered  for  that  amount.  Sturgis  v.  Spofford, 
58  N.  Y.  103. 

The  provisions  of  section  738  of  the  Code  have  no 
application  to  suits  of  foreclosure  of  mechanics'  liens. 
Ball  v.  Doherty,  144  A.  D.  277;  Salerno  -v.  Vogt,  78 
Misc.  64. 

Defendant's  costs,  when  awarded,  should  be  set  off 
on  entry  of  judgment.  Warden  v.  Frost,  35  Hun,  141; 
Coatsworth  v.  Ray,  52  N.  Y.  S.  498. 

§  190.  Confession  of  judgment. 

On  confession  of  judgment  plaintiff  is  entitled  to  have 
fifteen  dollars  costs  taxed  and  taxable  disbursements  in 
accordance  with  section  1275  of  the  Code. 


CHAPTER  XXV 

REFEREE'S  FEES 

§  191.  Statutory  provisions. 

192.  Without  stipulation  only  legal  fees  are  taxable. 

193.  Effect  of  stipulation  on  fees. 

194.  Several  actions  tried  together. 

195.  Entitled  to  fees  for  every  day  of  attendance. 

196.  Fee  allowed  for  preparation  of  report. 

197.  Where  no  fee  will  be  allowed. 

198.  Attorneys  of  parties  may  enter  into  stipulation. 

199.  Report  of  referee  must  be  filed  as  prescribed. 

200.  Misconduct  of  referee. 

§  191.  Statutory  provisions. 
Fees  allowed  to  referees  are  governed  by  section  3296 

of  the  Code  which  reads  as  follows: — 

A  referee,  in  an  action  or  a  special  proceeding 
brought  in  a  court  of  record,  or  in  a  special  pro- 
ceeding, taken  as  prescribed  in  title  twelve  of  chap- 
ter 17  of  this  act,  is  entitled  to  ten  dollars  for  each 
day  spent  in  the  business  of  the  reference;  unless  at 
or  before  the  commencement  of  the  trial  or  hear- 
ing, a  different  rate  of  compensation  is  fixed,  by  the 
consent  of  the  parties,  other  than  those  in  default 
for  failure  to  appear  or  plead,  manifested  by  an 
entry  in  the  minutes  of  the  referee,  or  other- 
wise in  writing,  or  a  smaller  compensation  is 
fixed  by  the  court  or  judge  in  the  order  appointing 
him. 

109 


no  TAXATION  OF  COSTS 

§  192.  Without  stipulation  only  legal  fees  are  taxable. 

Therefore  where  no  agreement  is  made  as  to  any  other 
compensation  the  referee  is  entitled  to  the  legal  fee  of 
ten  dollars  a  day.  He  must  submit  a  statement  setting 
forth  the  time  occupied  by  him  in  the  reference  before 
his  fee  can  be  taxed.  Gilbert  v.  Deshon,  16  N.  Y.  S.  36. 

§  193.  Effect  of  stipulation  as  to  fees. 

While  the  parties  may  upon  written  stipulation  agree 
to  give  him  a  larger  amount  than  provided  for  in  the 
statute  (Mark  v.  Buffalo,  87  N.  Y.  184)  the  referee 
cannot  fix  his  own  compensation.  Smith  v.  Dunn,  94 
A.  D.  429. 

Where,  therefore,  parties  to  a  reference  stipulate  that 
referee's  fees  "  shall  be  ten  dollars  an  hour  for  each 
sitting"  the  agreement  limits  his  right  to  compensation, 
and  he  is  not  entitled  to  the  statutory  compensation  of 
ten  dollars  a  day  in  addition  when  not  sitting.  Mor- 
ganthaler  v.  Carlin,  132  A.  D.  361,  aff'd  in  198  N.  Y.  502. 

When  a  stipulation  is  silent  as  to  any  matter  no  force 
can  be  given  to  any  alleged  agreement  or  understanding 
in  the  face  of  the  statute  that  it  must  be  in  writing. 
Mead  v.  Tuckerton,  105  N.  Y.  557. 

Where  a  stipulation  is  entered  into  fixing  the  referee's 
fees  and  stenographer's  fees,  and  providing  that  they 
" shall  be  taxed  as  disbursements  in  the  action"  and  the 
referee  finds  that  the  plaintiff  is  not  entitled  to  tax  costs, 
plaintiff  cannot  tax  such  fees  as  disbursements  because 
the  allowance  of  disbursements  depends  on  recovery  of 
costs.  Megrue  v.  Megrue,  1 60  A.  D.  817.  An  agree- 
ment that  the  fees  shall  be  shared  by  both  parties  will 
be  enforced.  Brick  v.  Fowler,  61  How.  Pr.  153. 


REFEREE'S  FEES  in 

§  194.  Several  actions  tried  together. 

Where  two  actions  are  tried  together  only  one  fee  can 
be  charged  for  each  day.  Milliman,  p.  499.  Also  when 
he  decides  several  cases  on  the  same  day  only  one  fee  is 
to  be  charged.  Id. 

§  195.  Fee  for  every  day  of  attendance. 

Referee  is  entitled  to  fees  for  every  day's  attendance 
and  readiness  to  take  testimony  where  an  adjournment 
was  had  at  the  request  of  the  parties  made  at  that  time. 
Blank  v.  Spies,  62  N.  Y.  S.  1039;  Brush  v.  Kelsey,  47 
A.  D.  270.  But  such  charge  cannot  be  made  when  the 
adjournment  was  made  before  that  day.  Mead  v. 
Tuckerton,  105  N.  Y.  557. 

§  196.  Fee  allowed  for  preparation  of  report. 

Referee  will  be  allowed  a  fee  for  a  reasonable  time 
spent  in  the  consideration  of  the  case  after  its  submission, 
in  reaching  a  conclusion,  and  in  the  preparation  of  his 
opinion  and  report.  Finkel  v.  Kohn,  53  N.  Y.  S.  694; 
Brown  v.  Windmuller,  14  Abb.  Pr.  N.  S.  359. 

A  referee  who  has  made  a  report  and  has  been  paid 
his  fees  is  entitled  to  further  compensation  at  the  rate 
of  ten  dollars  a  day  for  services  necessarily  performed 
upon  a  proposed  amendment  to  a  proposed  case.  But- 
terly  v.  Deering,  69  Misc.  75. 

§  197.  Where  no  fee  will  be  allowed. 

Compensation  for  the  time  spent  in  going  to  and  re- 
turning from  the  place  where  the  hearings  are  held  can- 
not be  allowed  as  part  of  time  spent  in  hearing  and  de- 
termining the  question.  People  v.  Bank  of  Staten 


H2  TAXATION  OF  COSTS 

Island,  70  Misc.  637.  Nor  will  any  allowance  be  made 
to  him  for  expenses  such  as  car  fares,  hotel  bills,  etc. 
Brown  v.  Sears,  23  Misc.  559. 

§  198.  Attorneys  of  parties  may  stipulate. 

The  attorneys  are  authorized  to  stipulate  as  to  the 
referee's  fees.  Such  a  stipulation  comes  within  the 
provisions  of  the  section  where  the  "consent  of  the  par- 
ties *  in  writing"  is  required.  Mark  v.  City 
of  Buffalo,  87  N:  Y.  184. 

Where  such  an  agreement  has  been  entered  into  the 
courts  will  not  interfere  unless  fraud,  collusion  or  de- 
ceit can  be  shown.  Wolff  v.  Horn,  9  Misc.  100. 

§  199.  Report  of  referee  must  be  filed  as  prescribed. 

The  report  of  the  referee  must  be  filed  as  prescribed 
in  section  1019  of  the  Code  which  reads: — 

Upon  the  trial,  by  a  referee,  of  an  issue  of  fact,  or 
an  issue  of  law,  or  where  a  reference  is  made  as 
prescribed  in  section  1015  of  this  act,  the  referee's 
written  report  must  be  either  filed  with  the  clerk,  or 
delivered  to  the  attorney  for  one  of  the  parties 
within  60  days  from  the  time  when  the  cause  or 
matter  is  finally  submitted;  otherwise  either  party 
may  before  it  is  filed  or  delivered,  serve  a  notice 
upon  the  attorney  for  the  adverse  party,  that  he 
elects  to  end  the  reference.  In  such  a  case  the  ac- 
tion must  thenceforth  proceed  as  if  the  reference 
had  not  been  directed;  and  the  referee  is  not  en- 
titled to  any  fees. 

The  report  must  actually  be  delivered  or  filed  to  pre- 
vent the  reference  from  being  terminated.  A  mere 


REFEREE'S  FEES  "  113 

readiness  to  deliver  upon  being  paid  the  fees,  is  not 
sufficient.  Phipps  v.  Carman,  23  Hun,  150,  aff'd  84 
N.  Y.  650. 

A  delivery  "on  the  assurance  that  the  same  should  not 
be  filed  until  the  referee's  fees  should  be  paid"  is  equally 
insufficient.  Douglas  v.  Smith,  19  N.  Y.  S.  630. 

However,  a  failure  to  file  the  report  within  the  time 
does  not  make  such  report  void.  Some  steps  must  be 
taken  to  show  the  intention  to  end  the  reference.  Parker 
v.  Baxter,  19  Hun,  410. 

At  the  end  of  60  days  any  notice  is  sufficient  if  it  in- 
forms the  other  side  to  that  effect.  Gregory  v.  Cryder, 
10  Abb.  Pr.  N.  S.  289. 

§  200.  Misconduct  of  referee. 

Where  by  reason  of  the  misconduct  of  the  referee  his 
report  and  judgment  thereon  are  set  aside,  the  costs  of 
the  reference  cannot  be  taxed.  New  York  Bank  Note 
Co.  v.  Hamilton  Bank  Note  Co.,  75  N.  Y.  S.  520. 

Where  a  reference  is  terminated  in  the  manner  pointed 
out  in  section  1019  of  the  Code  "the  referee  is  not  en- 
titled to  any  fees.  The  referee,  therefore,  having  failed 
to  file  his  report  brought  himself  within  that  section  and 
the  payment  of  his  fees  was  a  voluntary  act  and  not  tax- 
able." Hertzberg  v.  Elvidge,  80  Misc.  290. 


CHAPTER  XXVI 

EXECUTORS  AND  ADMINISTRATORS 

§  201.  Statutory  provisions. 

202.  Entitled  to  a  complete  trial. 

203.  Unreasonably  resisting  claim. 

204.  Certificate  of  judge  or  referee  must  be  furnished. 

205.  When  taxation  against  an  executor  or  administrator 

allowed. 

206.  When  executors  and  administrators  are  liable  for  ap- 

peal costs. 
206a.  Exemption  from  payment  of  costs  limited. 

§  201.  Statutory  provisions. 

Sections  1835  and  1836  read  as  follows: — 

§  1835.  Where  a  judgment  for  a  sum  of  money 
only  is  rendered  against  an  executor  or  administra- 
tor, in  an  action  brought  against  him  in  his  repre- 
sentative capacity,  costs  shall  not  be  awarded 
against  him,  except  as  prescribed  in  the  next  sec- 
tion. 

§  1836.  Where  it  appears  in  a  case  specified  in 
the  last  section  that  the  plaintiff's  demand  was  pre- 
sented within  the  time  limited  by  a  notice, 
requiring  creditors  to  present  their  claims  and  that 
the  payment  thereof  was  unreasonably  resisted  or 
neglected,  the  court  may  award  costs  and  disburse- 
ments or  disbursements  without  costs  against  the 
executor  or  administrator  *  *  *.  Where  the  ac- 
tion is  brought  in  the  supreme  court  or  any  county 
114 


EXECUTORS  AND  ADMINISTRATORS  115 

court,  the  facts  must  be  certified  by  the  judge  or 
referee  before  whom  the  trial  took  place. 

§  202.  Entitled  to  a  complete  trial. 

These  sections  of  the  Code  entitle  executors  and  ad- 
ministrators to  exemption  from  costs  of  one  trial  which 
fully  determines  their  liability  and  stands  the  test  of 
appeal  if  any  is  taken.  So  that  where  judgment  against 
executors  was  with  costs  to  abide  the  event  and  a  new 
trial  ordered,  and  upon  the  second  trial  judgment  was 
again  obtained  against  the  executors,  the  special  term 
had  no  power  to  award  costs  against  the  executors  be- 
cause the  "event"  meant  not  only  the  final  success  in 
the  action  but  also  as  to  whether  costs  can  be  allowed 
against  executors  under  section  1836  of  the  Code.  Ben- 
jamin v.  VerNooy,  168  N.  Y.  578. 

§  203.  Unreasonably  resisting  claim. 

It  must  appear  that  the  administrator  or  executor 
did  not  unreasonably  resist  the  claim  of  the  creditor  or 
in  laying  claim  to  the  fund,  otherwise  costs  and  extra 
allowances  may  be  awarded  against  him.  Von  Schuck- 
man  v.  Heinrich,  93  A.  D.  278-281. 

§  204.  Certificate  of  judge  or  referee  must  be  furnished. 

A  certificate  of  the  judge  or  referee  before  whom  the 
case  was  tried  showing  the  facts  upon  which  the  award 
was  made  must  be  furnished  before  costs  may  be  awarded 
in  favor  of  a  claimant  against  an  estate.  Scheu  v.  Blum, 
119  A.  D.  825.  An  oral  direction  or  verbal  statement 
of  the  court  that  the  plaintiff  is  entitled  to  costs  against 
an  executor  is  not  sufficient.  The  direction  must  be  in 
writing.  Cornwell  v.  Sheldon,  134  A.  D.  58. 


n6  TAXATION  OF  COSTS 

Under  §  2681  of  the  Code  the  executor  or  adminis- 
trator must  serve  notice  in  writing  upon  the  claimant 
that  he  rejects  the  claim  or  some  part  of  it,  which  he 
specifies. 

§  205.  When  taxation  against  an  executor  or  administra- 
tor allowed. 

Where  an  action  is  brought  by  an  executor  or  adminis- 
trator for  an  act  or  claim  that  occurred  after  the  death 
of  the  testator  such  action  is,  for  the  purposes  of  taxa- 
tion, regarded  as  an  action  by  him  individually,  and  if  he 
is  unsuccessful  costs  may  be  taxed  against  him  indi- 
vidually without  application  to  the  court.  Dunphy  v. 
Callahan,  126  A.  D.  n,  affirmed  in  194  N.  Y.  587. 

§  206.  When  executor  or  administrator  is  liable  for  ap- 
peal costs. 

An  executor  or  administrator  who  appeals  and  is 
wholly  unsuccessful  assumes  the  risks  of  an  appellant 
and  is  liable  for  the  costs.  Benjamin  v.  Ver  Nooy,  168 
N.  Y.  578-582. 

§  206 a.  Exemption  from  payment  of  costs  limited. 

Sections  1835  and  1836  of  the  Code  apply  only  with 
reference  to  actions  and  rights  existing  at  the  time  of 
the  death  of  the  deceased.  They  have  no  reference  to 
claims  arising  out  of  the  personal  acts  of  the  representa- 
tive. In  the  latter  case  costs  are  awarded  in  accordance 
with  section  3246  of  the  Code,  in  the  same  way  as  in  an 
action  by  or  against  a  person  prosecuting  or  defending  in 
his  own  right.  Dunn  v.  Arkenburgh,  62  N.  Y.  S.  861. 


CHAPTER  XXVII 

FORMA  PAUPERIS 

§  207.  Statutory  provisions. 

208.  Order  must  be  presented  on  taxation  or  served  on 

adverse  party. 

209.  When  costs  may  be  taxed. 

210.  Not  relieved  from  payment  of  costs  accrued  prior  to 

granting  of  order. 

211.  In  appellate  court. 

212.  Costs  of  an  unsuccessful  appeal  taxable. 

213.  When  recovery  is  less  than  fifty  dollars. 

§  207.  Statutory  provisions. 

The  provisions  as  to  the  liability  of  a  party  suing  as  a 

poor  person  is  in  section  461  of  the  Code,  which  reads: — 

A  person  so  admitted,  may  prosecute  his  action, 

without  paying  fees  to  any  officer;  and  he  shall  not 

be  prevented  from  prosecuting  the  same,  by  reason 

of  his  being  liable  for  costs  of  a  former  action, 

brought  by  him  against  the  same  defendant.     If 

judgment  is  rendered  against  him,  or  his  complaint 

is  dismissed,  costs  shall  not  be  awarded  against 

him. 

§  208.  Order  must  be  presented  on  taxation  or  served 

on  adverse  party. 

The  order  allowing  the  party  to  sue  as  a  poor  person 
must  be  served  on  the  adverse  party  or  presented  to  the 
officer  on  taxation,  otherwise  judgment  entered  for  costs 

117 


n8  TAXATION  OF  COSTS 

taxed  on  a  dismissal  of  a  complaint  will  not  be  disturbed. 
Neugrosche  v.  Manhattan  Ry.  Co.,  i  State  Rep.  302. 

§  209.  When  costs  may  be  taxed. 

The  entry  of  an  order  granting  leave  to  sue  as  a  poor 
person  does  not  deprive  the  court  of  authority  to  impose 
costs  as  a  condition  of  granting  an  order  discontinuing 
the  action.  Parkinson  v.  Scott,  5  Misc.  261. 

Likewise  the  court  has  power  to  impose  costs  against 
such  a  person  as  a  condition  upon  which  a  judgment  by 
default  will  be  opened.  Elwin  v.  Routh,  i  Civil  Pro.  Rep. 
131.  So  also  notwithstanding  the  order,  the  court  has 
the  authority  to  impose  costs  on  the  granting  of  an  order 
amending  the  complaint.  Coyle  v.  Third  Ave.  R.  R. 
Co.,  19  Misc.  345. 

§  210.  Not  relieved  from  payment  of  costs  accrued  prior 
to  granting  of  order. 

The  provisions  of  the  section  do  not  exempt  the 
party  from  payment  of  costs  which  accrued  in  the  action 
prior  to  leave  granted  to  prosecute  in  forma  pauper  is. 
Lyons  v.  Murat,  54  How.  Pr.  Rep.  368. 

The  party  may  also  be  charged  with  costs  incurred  in 
setting  aside  his  proceedings  for  irregularity,  for  a  con- 
tempt, or  for  striking  out  scandalous  matter.  Richard- 
son v.  Richardson,  5  Paige.  58. 

§  211.  In  appellate  court. 

As  to  costs  in  appellate  courts  the  Code  of  Civil  Pro- 
cedure provides:— 

Sec.  466.  An  order,  made  as  prescribed  in  this 
article,  does  not  authorize  the  petitioner  to  take  or 


FORMA  PAUPERIS  119 

maintain  an  appeal,  as  a  poor  person;  but  where  an 
appeal  is  taken  by  the  adverse  party,  the  order  is 
applicable,  in  favor  of  the  petitioner,  as  respondent 
in  the  appeal. 

Sec.  467.  Where  costs  are  awarded  in  favor  of 
a  person,  who  had  been  admitted  to  prosecute  or  de- 
fend as  a  poor  person,  as  prescribed  in  this  article, 
they  must  be  paid  over  to  his  attorney,  when  col- 
lected from  the  adverse  party,  and  distributed 
among  the  attorney  and  counsel  assigned  to  the 
poor  person,  as  the  court  directs. 

§  212.  Costs  of  an  unsuccessful  appeal  are  taxable. 

Therefore,  in  accordance  with  the  above  provisions,  a 
party  who  sues  as  a  poor  person  has  a  right  to  appeal 
from  a  judgment,  but  he  is  not  relieved  from  paying  the 
costs  of  an  unsuccessful  appeal.  Hayden  v.  Hayden,  8 
A.  D.  547;  Morse  v.  City  of  Troy,  38  Hun,  301. 

§  213.  When  recovery  is  less  than  fifty  dollars. 

A  plaintiff  who  has  been  allowed  to  sue  in  forma  pau- 
peris  cannot  be  held  liable  for  costs  when  his  recovery  in 
an  action  for  personal  injury  is  less  than  fifty  dollars. 
Such  a  case  is  governed  by  the  provisions  of  section  461 
of  the  Code.  Weltman  v.  Posenbecker,  19  Misc.  592; 
this  case  reverses  same  case  reported  in  18  Misc.  599. 


CHAPTER  XXVIII 

DISBURSEMENTS 

§  214.  Statutory  provisions. 

215.  Authority  of  taxing  officer  to  tax  disbursements. 

216.  Affidavit  as  to  disbursements  must  accompany  bill  of 

costs. 

217.  An  award  of  costs  includes  disbursements. 

218.  Clerk's  taxation  of  disbursements  not  disturbed. 

219.  Service  of  summons. 

(a)  Additional  costs  for  additional  defendants. 

(b)  Effect  of  voluntary  appearance. 

220.  Disbursements  for  service  of  subpoena  not  allowed. 

221.  Premiums  paid  on  bond  or  undertaking  not  taxable. 

222.  Disbursements  for  official  searches  allowed. 

223.  Stenographer's  fees. 

224.  Stenographer's  minutes  to  prepare  amendments. 

225.  Minutes  to  be  used  on  another  trial. 

226.  Disbursements  for  minutes  allowed  when  procured  by 

direction  of  court. 

227.  Stipulation  as  to  payment  of  stenographer's  fees. 

228.  Stenographer's  fees  on  a  reference. 

229.  Excess  rate  nor  transcript  of  summation  allowable. 

230.  Printing  may  be  allowed  on  appeal  from  order. 

231.  Proof  of  expense  incurred  to  be  submitted. 

232.  Appeal  of  several  defendants  on  same  papers. 

233.  Same  document  used  in  several  actions. 

234.  No  allowance  to  be  made  for  service  of  papers  on  at- 

torney. 

235.  Jury  fees. 

§  214.  Statutory  provisions. 
Section  3256  of  the  Code  provides  that: — 

A  party  to  whom  costs  are  awarded  in  an  action 


DISBURSEMENTS  121 

is  entitled  to  include  in  his  bill  of  costs  his  neces- 
sary disbursements  as  follows: 

The  legal  fees  of  witnesses  and  of  referees  and 
other  officers. 

The  reasonable  compensation  of  commissioners 
taking  depositions. 

The  legal  fees  for  publication  where  publication 
is  directed  pursuant  to  law. 

The  legal  fees  paid  for  a  certified  copy  of  a  deposi- 
tion, or  other  paper,  recorded  or  filed  in  any  public 
office,  necessarily  used  or  obtained  for  use  on  the 
trial. 

Copies  of  opinions  and  charges  of  judges. 

The  reasonable  expenses  of  printing  the  papers 
for  a  hearing,  when  required  by  a  ruling  of  the 
court. 

Prospective  charges  for  expenses  of  entering  and 
docketing  the  judgment. 

Sheriff's  fees  for  receiving  and  returning  one 
execution  thereon,  including  the  search  for  prop- 
erty and  such  other  reasonable  and  necessary  ex- 
penses, as  are  taxable,  according  to  the  course 
and  practice  of  the  court,  or  by  express  provision 
of  law  *  *  *. 

§  215.  Authority  of  taxing  officer  to  tax  disbursements. 

The  taxing  officer  has  no  authority  to  tax  the  disburse- 
ments of  a  party  unless  costs  have  been  awarded  to  him 
as  the  recovery  of  disbursements  follow  the  recovery  of 
costs.  Burns  v.  D.,  L.  &  W.  R.  R.  Co.,  135  N.  Y.  268; 
Warren  v.  Chase,  8  Misc.  520. 

It  follows  that  where  a  party  to  an  action  succeeds  to 


122  TAXATION  OF  COSTS 

the  extent  that  he  is  entitled  to  general  costs  and  dis- 
bursements, every  legal  disbursement  incurred  in  good 
faith  in  the  case  follows  and  cannot  be  defeated  by  show- 
ing that  it  was  incurred  in  an  unsuccessful  attempt  to 
establish  a  separate  cause  of  action  as  to  which  the  party 
fails.  Burns  v.  D.,  L.  &  W.  R.  R.  Co.,  135  N.  Y.  268. 

The  only  disbursements,  however,  which  a  party  can 
tax  are  those  which  he  has  incurred,  or  will  incur,  in  the 
entry  of  judgment,  and  the  issuance  of  process  for  its 
collection.  Clegg  v.  Aiken,  n  St.  Rep.  354,  affd  in  109 
N.  Y.  612. 

§  216.  Affidavit  as  to  disbursements  must  accompany 
bill  of  costs. 

The  bill  of  costs  must  be  accompanied  by  an  affidavit 
as  to  the  necessity  and  the  reasonableness  of  the  items 
of  disbursements.  The  clerk  may  disallow  items  not 
shown  to  be  "reasonable  in  amount,"  but  he  is  not  au- 
thorized to  reduce  because  he  believes  the  charge  to  be 
excessive.  Raff  v.  Koster  Bial  &  Co.,  27  Misc.  47. 

§  217.  An  award  of  costs  includes  disbursements. 

A  recovery  of  disbursements  cannot  stand  except  upon 
a  recovery  of  costs.  Nichols  v.  Moloughney,  85  A.  D.  i. 
Therefore  when  a  court  awards  costs  it  is  not  necessary 
to  set  forth  the  items  allowed,  these  are  to  be  ascertained 
upon  taxation,  nor  is  it  necessary  to  specify  that  dis- 
bursements as  well  as  costs  are  allowed.  Under  section 
3256  of  the  Code  costs  in  an  action  carries  with  it 
disbursements.  Matter  of  Babcock,  86  A.  D.  564. 

§  218.  Clerk's  taxation  of  disbursements  not  disturbed. 
Where  the  affidavit  of  the  successful  party  as  to  dis- 


DISBURSEMENTS  123 

bursements  stating  that  the  amounts  paid  are  correct, 
true,  and  reasonable,  and  actually  and  necessarily  in- 
curred, is  met  by  an  affidavit  of  the  opposing  party  that 
the  amount  was  not  necessarily  paid  or  incurred,  the  ac- 
tion of  the  clerk  in  taxing  the  amounts  will  not  be  dis- 
turbed. Rose  v.  Swarthout,  73  Misc.  583. 

§  219.  Service  of  summons. 

Costs  incurred  for  the  service  of  summons  and  com- 
plaint are  taxable  only  on  entry  of  final  judgment.  Hill 
v.  Muller,  53  Misc.  262.  Allowance  for  mileage  is  6  cents 
for  each  mile  travelled.  Brown  v.  Mapelson,  2  City 
Ct.  Rep.  404.  (Section  3307,  subdivision  i  of  the  Code.) 

(a)  Additional  costs  for  additional  defendants. 

The  additional  costs  of  two  dollars  allowed  for  each 
additional  defendant  served  not  exceeding  ten  should 
only  be  allowed  for  defendants  necessarily  made  parties 
to  the  suit,  and  it  is  not  too  late  to  urge  this  objection 
on  the  adjustment  of  costs.  (Section  3251,  subdivision  i.) 
Case  v.  Price,  17  How.  Pr.  Rep.  348. 

(b)  Effect  of  voluntary  appearance  of  defendants. 

A  voluntary  appearance  by  a  defendant  is  held  to  be 
equivalent  to  personal  service  of  summons  so  far  as  this 
item  of  costs  is  concerned.  Schwinger  v.  Hickox,.  46 
How.  Pr.  Rep.  114. 

§  220.  Disbursements  for  service  of  subpoena  not  al- 
lowed. 

The  expense  incurred  by  a  party  in  serving  subpoenas 
upon  witnesses  is  not  taxable  by  the  clerk  as  necessary 


i24  TAXATION  OF  COSTS 

disbursements.    Town  of  Pierrepont  v.  Loveless,  4  Hun, 
681. 

§  221.  Premiums   paid    on    bond    or   undertaking   not 
taxable. 

The  premium  paid  a  surety  company  which  furnished 
the  requisite  statutory  undertaking  given  by  the  plaintiff 
in  order  to  replevy  chattels,  is  not  properly  taxable  as  an 
item  of  disbursement  in  the  action.  Bick  v.  Reese,  52 
Hun,  125. 

Likewise  the  amount  paid  a  surety  company  for  fur- 
nishing an  appeal  bond  must  be  disallowed  on  taxation 
of  costs  as  there  is  no  authority  for  allowing  them.  Lee 
Injector  M'f'g  Co.  v.  Penberthy  Injector  Co.,  109  Fed- 
eral Rep.  964,  cited  with  approval  in  Louisville  Lumber 
Co.  v.  Smith,  154  A.  D.  386,  p.  387. 

Same  rule  applies  where  a  foreign  corporation,  suing 
in  the  courts  of  this  state,  was  ordered  to  file  an  under- 
taking as  security  for  costs;  the  amount  it  paid  as  a  pre- 
mium to  a  surety  company  for  furnishing  the  undertak- 
ing, cannot  be  taxed.  Louisville  Lumber  Co.  v.  Smith, 
154  A.  D.  386. 

§  222.  Disbursements  for  official  searches  allowed. 

Disbursements  for  searches  made  by  title  insurance 
companies  organized  under  the  laws  of  the  State  of  New 
York  are  authorized  by  section  3256  of  the  Code,  but 
disbursements  for  other  searches  are  not  authorized  and 
cannot  be  taxed.  Unofficial  searches  or  examinations  of 
titles  to  property  are  not  taxable.  Friedman  v.  Bor- 
chard,  161  A.  D.  672;  Equitable  Life  Assurance  So- 
ciety v.  Hughes,  125  N.  Y.  106. 


DISBURSEMENTS  125 

An  official  search  by  a  proper  officer  in  a  sister  state 
is  taxable.  Rose  v.  Swarthout,  73  Misc.  583. 

§  223.  Stenographer's  fees. 

There  is  no  statutory  authority  taxation  of  stenog- 
rapher's fees,  and  moneys  paid  therefor  cannot  be  taxed 
except  by  consent.  Seasongood  v.  Elevated  R.  R.  Co., 
46  N.  Y.  St.  Rep.  832. 

This  rule  has,  however,  been  relaxed  so  as  to  permit 
the  costs  of  stenographer's  minutes  to  be  taxed  when 
they  are  procured  for  the  preparation  of  a  case  on  appeal 
or  amendments  thereto,  or  by  order  of  the  court.  Hertz- 
berg  v.  Elvidge,  80  Misc.  290.  The  authority  therefor 
may  be  found  in  section  3256  of  the  Code  which  recites 
that  "the  reasonable  expenses  of  printing  the  papers  for 
a  hearing,  when  required  by  a  ruling  of  the  court"  may 
be  taxed,  as  well  as  the  additional  provision  that  "such 
other  and  reasonable  and  necessary  expenses,  as  are  tax- 
able, according  to  the  course  and  practice  of  the  court, 
or  by  express  provision  of  law."  Equitable  Life  Assur- 
ance Society  v.  Hughes,  125  N.  Y.  106. 

A  necessary  disbursement  is  such  as  a  party  is  com- 
pelled to  make  or  incur  in  the  course  of  an  action  up  to 
entry  of  final  judgment.  Delcomyn  v.  Chamberlain,  48 
How.  Pr.  409. 

§  224.  Stenographer's  minutes  to  prepare  amendments. 
Disbursements  of  a  respondent  in  procuring  stenog- 
rapher's minutes  in  order  to  prepare  amendments  to  a 
proposed  case  are  properly  taxed  on  an  affirmance  of  the 
judgment,  although  he  did  not  first  request  the  loan  of 
the  appellant's  copy.  If  the  appellant  would  save  him- 


126  TAXATION  OF  COSTS 

self  from  liability  from  such  disbursements  he  must  ten- 
der the  minutes  to  the  respondents.  Starkweather  v. 
Sundstorm,  113  A.  D.  401;  Ridabock  v.  Metropolitan 
Elevated  R.  R.  Co.,  8  A.  D.  309. 

When,  therefore,  the  minutes  having  been  printed  by 
the  appellants  and  offered  to  respondent,  and  the  latter 
having  refused  to  accept  them,  the  respondent  will  not 
be  permitted  to  tax  such  disbursements.  Park  v.  N.  Y. 
Central  &  H.  R.  R.  R.  Co.,  33  Misc.  320. 

But  where  respondent  asked  the  appellants  for  the 
stenographer's  minutes  to  prepare  amendments  to  a 
proposed  case  and  was  refused,  the  disbursements  in- 
curred in  procuring  such  minutes  were  allowed  to  be 
taxed.  Park  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  57  A.  D.  569. 

Although  such  minutes  were  ordered  and  used  during 
the  progress  of  the  trial,  nevertheless  if  they  were  or- 
dered for  the  purpose  and  with  a  view  of  preparing 
amendments  to  the  case  on  appeal  such  disbursements 
may  be  taxed.  Pratt  v.  Clark,  124  A.  D.  248. 

A  party  will  not,  however,  be  allowed  to  tax  the  costs 
of  minutes  when  it  appears  by  the  uncontroverted  affi- 
davit of  his  opponent  that  the  party  ordered  and  re- 
ceived a  copy  of  the  minutes  from  day  to  day  during  the 
trial,  even  though  the  affidavit  states  that  the  minutes 
were  necessarily  obtained  and  actually  used  in  prepar- 
ing amendments  to  the  proposed  case  on  appeal.  "Of 
course  it  may  be  made  to  appear  that,  although  the 
minutes  are  ordered  during  the  trial,  they  were  so  ordered 
and  received  with  an  eye  to  the  preparation  of  amend- 
ments to  a  case  on  appeal  (Pratt  v.  Clark,  supra)  if  that 
shall  be  the  event,  but  we  think  that  the  affidavit  in 
this  case  was  not  sufficient  to  so  satisfy  the  court." 


DISBURSEMENTS  127 

L.  I.  Contracting  &  Supply  Co.  v.  The  City  of  New 
York,  142  A.  D.  i. 

§  225.  Minutes  to  be  used  on  another  trial. 

The  expense  of  procuring  the  stenographer's  min- 
utes of  the  first  trial  for  use  on  the  second  trial  is  not  a 
taxable  disbursement.  Gilmour  v.  Stettler,  58  Misc. 
361.  Nor  is  the  plaintiff  entitled  to  tax  the  stenog- 
rapher's fees  for  furnishing  the  minutes  of  one  trial  for 
use  on  a  subsequent  trial.  Hudson  v.  Erie  R.  R.  Co., 
57  A.  D.  98.  Likewise  the  minutes  of  a  trial  which  re- 
sulted in  the  disagreement  of  the  jury  cannot  be  taxed. 
Herrmann  v.  Herrmann,  88  A.  D.  77. 

§  226.  Disbursements  allowed   when  procured   by  di- 
rection of  court. 

Stenographer's  minutes  procured  by  order  or  direc- 
tion of  the  court  for  the  purpose  of  being  used  either  on  a 
motion  or  a  trial  may  be  taxed.  So  that  where,  on  a 
motion  for  a  new  trial,  there  is  a  dispute  as  to  the  testi- 
mony of  one  of  the  witnesses,  and  the  court  directs  one 
of  the  counsel  to  furnish  the  testimony,  the  stenogra- 
pher's fees  for  transcribing  such  evidence  is  part  of  the 
taxable  costs.  Vibbard  v.  Kruser  Construction  Co., 
145  A.  D.  673;  Johnson  v.  N.  Y.  Elevated  R.  R.  Co.,  10 
Misc.  136. 

§  227.  Stipulation  as  to  payment  of  fees. 

A  stipulation  that  a  referee's  fees  and  stenographer's 
fees  shall  "be  taxed  as  a  disbursement  in  the  action" 
should  be  construed  to  mean  that  the  party  ultimately 
liable  for  costs  shall  also  be  liable  for  these  disburse- 


128  TAXATION  OF  COSTS 

ments.  Megrue  v.  Megrue,  160  A.  D.  817.  The  amount 
paid  by  a  party  for  stenographer's  fees  on  a  reference  is 
taxable  where  it  was  stipulated  that  the  successful  party 
might  include  the  item  in  his  bill.  Wolf  v.  Horn,  9 
Misc.  100;  Brown  v.  Sears,  23  Misc.  550. 

After  a  motion  for  a  new  trial  on  the  judge's  minutes 
it  was  stipulated  that  a  copy  of  the  case  made  and 
settled  for  such  motion  might  be  used  on  a  motion  for  a 
new  trial  on  the  ground  of  newly  discovered  evidence, 
a  copy  of  the  stenographer's  minutes  was  unnecessary  for 
the  latter  motion  and  the  charge  therefor  should  not  be 
taxed  as  a  disbursement.  Brennan  v.  Joline,  70  Misc. 

537- 

§  228.  Stenographer's  fees  on  a  reference. 

Stenographer's  fees  in  a  reference  under  section  1015  of 
the  Code,  cannot  be  imposed  on  either  party  because  sec- 
tion 3251  of  the  Code  makes  no  provision  for  same.  An- 
derson v.  E.  DeBraekeleer  &  Co.,  25  Misc.  343. 

The  cost  of  printing  the  copies  of  the  referee's  report 
and  opinion  and  judgment  can  only  be  taxed  by  virtue 
of  a  written  agreement  signed  by  the  attorneys  for  all 
the  parties.  Veeder  v.  Mudgett,  27  Hun,  519. 

Stenographer's  fees  on  a  reference  may  be  taxed  where 
a  stipulation  has  been  entered  into  that  the  successful 
party  may  include  the  item  in  his  bill.  Brown  v.  Sears, 
23  Misc.  559. 

§  229.  Excess  rate  nor  transcript  of  summation  allow- 
able. 

The  costs  of  a  transcript  of  a  summation  is  not  tax- 
able as  it  is  not  a  proper  part  of  a  case  on  appeal.  Nor 


DISBURSEMENTS  129 

are  the  sums  paid  in  excess  of  the  statutory  rate  of  ten 
cents  a  folio,  to  procure  expedition  in  order  that  the  min- 
utes might  be  used  during  the  trial,  taxable  as  a  dis- 
bursement on  appeal.  Pratt  v.  Clark,  124  A.  D.  248. 

§  230.  Printing  may  be  allowed  on  appeal  from  order. 

Upon  an  appeal  from  an  order  the  court  may  allow 
printing  disbursements  but  it  must  be  expressly  allowed 
and  direct  the  taxation  thereof,  otherwise  none  can  be 
taxed.  Cassidy  v.  McFarland,  139  N.  Y.  201;  Brennan 
i).  Joline,  70  Misc.  537. 

§  231.  Proof  of  expense  to  be  submitted. 

Where  several  defendants  unite  in  an  appeal  and  some 
are  successful  and  some  are  not,  the  successful  parties 
will  not  be  allowed  to  charge  for  printing  unless  they 
submit  proof  that  they  incurred  the  expense.  Kane  v. 
Met  El.  R.  R.  Co.,  7  N.  Y.  S.  653. 

§  232.  Appeal  of  several  defendants  on  same  papers. 

Where  two  defendants  appeal  on  the  same  set  of  pa- 
pers and  the  judgment  is  affirmed  as  to  one  and  re- 
versed as  to  the  other,  the  expense  of  printing  should  be 
divided  equally  between  them,  so  that  one-half  of  the 
expense  might  be  taxed  by  the  party  who  succeeded  to 
obtain  the  reversal.  It  should  be  shown  that  the  ex- 
pense was  paid  and  incurred  by  both  appellants.  Kane 
v.  Metropolitan  EL  R.  R.  Co.,  28  N.  Y.  State  Rep.  399. 

§  233.  Same  document  used  in  several  actions. 

Where  documents  upon  trial  of  each  of  several  actions 
brought  by  different  plaintiffs  against  the  same  de- 


130  TAXATION  OF  COSTS 

fendant  and  the  cost  for  procuring  them  was  $160,  held 
in  the  absence  of  proof  that  the  sum  was  paid  in  each 
case,  the  amount  should  have  been  taxed  once  only. 
Jermain  v.  Lake  Shore  &  M.  S.  R.  R.  Co.,  31  Hun,  558. 

§  234.  No  allowance  to  be  made  for  service  of  papers  on 
attorney. 

No  allowance  should  be  made  for  the  service  of  an 
answer  or  order  upon  the  defendant's  attorney  person- 
ally, and  the  disbursements  incurred  cannot  be  taxed  un- 
less there  is  a  peculiar  necessity  for  personal  service. 
Fuller  Buggy  Co.  v.  Waldron,  49  Misc.  278. 

§  235.  Jury  fees. 

The  item  of  jury  fees  is  an  actual  disbursement  and 
should  be  allowed  whenever  it  is  incurred,  and  the  fact 
that  the  jury  disagreed  for  which  the  fee  is  charged  is 
immaterial.  Hudson  v.  Erie  R.  R.  Co.,  57  A.  D.  98. 
The  successful  party  is  entitled  to  tax  as  many  jury  fees 
as  he  paid  although  the  verdict  is  set  aside  by  reason  of 
the  misconduct  of  the  jury.  Hudson  v.  Erie  R.  R.  Co., 
supra. 


CHAPTER  XXEX 

DISBURSEMENTS  FOR  ATTENDANCE  OF  WITNESSES 

236.  Statutory  provisions. 

237.  Affidavit  must  accompany  the  bill  of  costs  for  atten- 

dance of  witnesses. 

238.  Stipulation  by  parties  as  to  fees. 

239.  Witness  subpoenaed  but  not  called  to  testify. 

240.  Witness  fees  allowed  for 

(a)  Adverse  party. 

(b)  Stockholder  of  corporation. 

(c)  Officer  of  corporation. 

241.  Witness  fees  disallowed  for 

(a)  Party  in  the  action. 

(b)  Co-defendant. 

(c)  Attorney  of  record. 

242.  Expert  testimony. 

243.  Allowance  of  mileage ;  affidavit  of  mileage  necessary. 

244.  Mileage  allowed  one  way  once  only. 

245.  Mileage  computed  from  place  of  actual  residence. 

246.  Mileage  allowed  for  foreign  witness. 

247.  Fees  must  appear  to  have  been  paid  or  will  be  paid. 

248.  Testimony  taken  at  residence  of  witness. 

249.  Disbursements  not  included  in  motion  costs. 

236.  Statutory  provisions. 

Sec.  3267.  A  charge  for  the  attendance  of  a 
witness,  cannot  be  allowed  without  an  affidavit, 
stating  the  number  of  days  of  his  actual  attendance; 
and,  if  travel  fees  are  charged,  the  distance  for 
which  they  are  allowed.  A  charge  for  a  copy  of  a 
document  or  paper,  cannot  be  allowed,  without  an 


132  TAXATION  OF  COSTS 

affidavit,  stating  that  it  was  actually  and  necessarily 
used  or  was  necessarily  obtained  for  use.  An  item 
of  disbursement  in  a  bill  cannot  be  allowed  in  any 
case,  unless  it  is  verified. 

Sec.  3318.  A  witness  in  an  action  or  special 
proceeding,  attending  before  a  court  of  record,  or  a 
judge  thereof  is  entitled,  except  where  another  fee 
is  specially  prescribed  by  law,  to  fifty  cents  for  each 
day's  attendance;  and  if  he  resides  more  than  three 
miles  from  the  place  of  attendance,  to  eight  cents 
for  each  mile  going  to  the  place  of  attendance. 

§  237.  Affidavit  must  accompany  the  bill  of  costs  for 
attendance  of  witnesses. 

Following  the  provisions  of  the  section  of  the  Code, 
a  charge  for  the  attendance  of  a  witness  cannot  be 
allowed  without  an  affidavit  stating  the  number  of 
days  of  his  actual  attendance,  and  if  travelling  fees  are 
charged,  the  distance  for  which  they  are  allowed.  In- 
derlied  v.  Whaley,  17  Civ.  Pro.  Rep.  377,  and  cases  cited 
therein;  Taaks  v.  Schmidt,  25  How.  Pr.  340. 

An  affidavit  which  fails  to  state  that  the  witnesses  are 
material,  is  insufficient  to  authorize  the  taxation  of  the 
fees.  Wheeler  v.  Lozee,  12  How.  Pr.  446;  O'Loughlin  v. 
Hammond  &  Co.  (No.  2),  12  Civ.  Pro.  Rep.  171.  The 
affidavit  should  also  disclose  that  the  party  paid  witness 
fees  or  was  liable  therefor.  Inderlied  v.  Whaley  (supra). 

When  conflicting  affidavits  are  submitted  it  is  the 
duty  of  the  clerk  to  decide  whether  the  witnesses  were 
necessarily  subpoenaed  or  whether  they  were  procured 
with  a  view  to  increase  the  costs.  Crosley  v.  Cobb,  37 
Hun,  271. 


DISBURSEMENTS  FOR  WITNESSES  133 

The  payment  of  fees  to  witnesses  by  a  party,  after 
the  case  is  disposed  of  in  his  favor,  when  he  is  not  legally 
liable  to  pay  for  them,  does  not  entitle  him  to  have  such 
fees  allowed  him  as  part  of  his  disbursements.  Agri- 
cultural Insurance  Co.  v.  Bean,  45  How.  Pr.  444. 

§  238.  Stipulation  by  parties  as  to  fees. 

Where  the  parties  to  the  action  have  entered  into  a 
stipulation  as  to  fees  to  be  paid  to  witnesses,  the  taxing 
officer  may  allow  the  charges  in  accordance  therewith 
although  they  provide  for  the  payment  of  larger  fees 
than  the  law  fixes.  Wolff  v.  Horn,  9  Misc.  100;  Mark  v. 
City  of  Buffalo,  87  N.  Y.  184;  Burt  v.  Oneida  Commu- 
nity, 59  Hun,  234. 

§  239.  Witness  subpoenaed  but  not  called  to  testify. 

The  fact  that  the  witnesses  were  not  sworn  and  called 
to  testify  on  the  trial  is  presumptive  evidence  that  they 
were  not  necessary  and  the  fees  paid  to  them  are  not  tax- 
able unless  their  materiality  is  shown  and  sufficient 
reason  shown  why  they  were  not  called  upon  to  testify. 
Kohn  v.  Manhattan  R.  Co.,  8  Misc.  421. 

§  240.  Witness  fees  allowed. 

(a)  Adverse  party. 

Witness  fees  may  be  allowed  for  subpoenaing  an  ad- 
verse party.  Howlet  v.  Brown,  7  Abb.  Pr.  74. 

(b)  Stockholder  of  corporation. 

Fees  will  also  be  allowed  for  subpcenaing  stockholders 
of  a  corporation.  Midbury  v.  Butternuts  &  S.  T.  Co.,  i 
How.  Pr.  231. 


134  TAXATION  OF  COSTS 

(c)  Officers  of  a  corporation. 

Fees  for  officers  of  a  corporation  will  be  allowed  where 
the  affidavit  shows  that  their  fees  have  been  paid  or  will 
be  paid.  Cheever  v.  Pittsburgh  S.  &  L.  E.  R.  Co.,  26 

N.  Y.  S.  829. 

• 

§  241.  Witness  fees  disallowed. 

(a)  Party  in  the  action. 

A  party  to  the  action  cannot  tax  as  a  disbursement  a 
witness  fee  for  himself.  (Section  3288.)  Alexander  v. 
Henry,  L.  J.  Feb.  24,  1915. 

(b)  Co-defendants. 

Witness  fees  for  the  attendance  at  a  trial  of  co-de- 
fendants who  were  not  subpoenaed  should  not  be  al- 
lowed where  it  does  not  appear  that  they  attended  as 
witnesses  and  not  as  parties.  Fuller  Buggy  Co.,  49 
Misc.  279. 

(c)  Attorneys  of  record. 

Section  3288  of  the  Code  provides  that  a  party  is  not 
entitled  to  tax  witness  fees  for  his  own  attendance,  nor 
is  an  attorney  of  record  entitled  to  fees  for  attending  as 
a  witness  in  behalf  of  his  client.  But  where  the  attorney 
has  rendered  services  of  such  a  nature  that  they  might 
have  been  performed  by  one  not  an  attorney,  witness 
fees  therefor  may  be  taxed.  Kennedy  v.  Jarvis,  126 
A.  D.  551. 

§  242.  Expert  testimony. 

Sums  paid  for  plans  and  measurements,  and  for  com- 
pensation of  experts  beyond  their  fees  as  witnesses  are 


DISBURSEMENTS  FOR  WITNESSES  135 

not  properly  taxable  as  a  "necessary  disbursement." 
Mark  v.  City  of  Buffalo,  87  N.  Y.  184.  Nor  payments 
made  to  engineers  and  surveyors  for  surveys  made  for 
the  purpose  of  trial.  Rothery  v.  N.  Y.  Rubber  Co.,  90 
N.  Y.  30.  Nor  the  cost  of  a  sketch  of  a  scene  of  acci- 
dent which  was  introduced  at  the  trial  in  evidence. 
Sinne  v.  City  of  New  York,  8  Civ.  Pro.  Rep.  25 2n. 

§  243.  Allowance  of  mileage ;  affidavit  of  mileage  neces- 
sary. 

Section  3267  of  the  Code  precludes  the  taxation  for 
mileage  paid  to  a  witness  unless  an  affidavit  is  filed  stat- 
ing the  distance  for  which  mileage  has  been  allowed  in  the 
bill  of  costs,  and  the  practice  requires  that  the  affidavit 
shall  state  the  distance  from  the  place  of  residence  of 
each  witness  to  the  courthouse.  Smith  v.  Hutton,  134 
A.  D.  445;  Taaks  v.  Schmidt,  25  How.  Pr.  340. 

§  244.  Mileage  allowed  one  way  once  only. 

Section  3318  of  the  Code  providing  for  fees  and  mile- 
age to  be  paid  to  witnesses  authorizes  the  taxation  of 
mileage  of  one  day's  attendance  only,  even  though  the 
witness  travelled  daily  to  and  from  the  place  of  trial. 
The  per  diem  fee  of  fifty  cents  is  the  only  allowance  to 
the  witness  while  in  attendance  at  court.  O'Rourke  v. 
Degnon  R.  &  T.  Improvement  Co.,  139  A.  D.  695. 

Under  section  3318  providing  for  witness  fees  a  party 
is  not  entitled  to  tax  mileage  for  trips  to  and  from  their 
homes  during  the  adjournment  from  Friday  afternoon 
to  the  following  Monday.  Booth  v.  H.  S.  Kerbaugh, 
143  N.  Y.  S.  624. 

The  mileage  of  a  witness  residing  more  than  three 


136  TAXATION  OF  COSTS 

miles  from  the  place  of  attendance  is  to  be  computed 
from  the  place  of  residence  irrespective  of  the  place  of 
service  of  the  subpoena.  Ahrens  v.  Coleman,  66  Misc. 
569;  Pike  v.  Nash,  16  How.  Pr.  53. 

§  245.  Mileage  computed  from  place  of  actual  residence. 

A  witness  having  no  temporary  residence  at  his  place 
of  business  is  entitled  to  mileage  from  his  place  of  actual 
residence.  But  if  he  has  a  temporary  residence  at  his 
place  of  business  from  which  he  may  be  subpoenaed  and 
to  which  he  must  return,  that  is  his  residence  for  the 
purpose  of  figuring  mileage.  Smith  v.  Hutton,  134  A.  D. 

445- 

§  246.  Mileage  for  foreign  witness. 

In  case  of  a  foreign  witness  the  mileage  to  be  allowed 
is  the  distance  from  the  point  where  a  person  coming 
from  his  place  of  residence  usually  enters  the  state,  to  the 
court-house  by  the  usual  route.  Taaks  v.  Schmidt,  25 
How.  Pr.  340. 

§  247.  Fees  must  appear  to  have  been  paid  or  will  be 
paid. 

A  defendant  railroad  which  transported  its  witnesses 
to  the  places  of  trial  on  free  passes  is  not  entitled  to  tax 
their  mileage  because  of  the  mere  possibility  that  it  may 
thereafter  be  called  upon  to  pay.  Valk  v.  Erie  R.  R. 
Co.,  128  A.  D.  470. 

Where  there  is  no  evidence  whatever  on  the  taxation 
of  costs  to  warrant  a  conclusion  as  to  the  mileage  of  the 
sheriff,  the  taxation  of  such  mileage  is  erroneous.  Hak- 
onson  v.  Met.  St.  Ry.  Co.,  40  Misc.  182. 


DISBURSEMENTS  FOR  WITNESSES  137 

§  248.  Testimony  taken  at  residence  of  witness. 

Where  a  referee  is  appointed  to  take  testimony  at 
the  residence  of  a  witness,  the  travelling  expenses  in- 
curred in  conveying  the  referee  to  and  from  the  resi- 
dence of  the  witness  may  be  taxed.  Reichel  v.  N.  Y. 
Cent.  &  H.  R.  R.  R.  Co.,  18  Civ.  Pro.  Rep.  256. 

§  249.  Disbursements  not  included  in  motion  costs. 

Section  3256  of  the  Code  does  not  apply  to  motions. 
Cassidy  v.  McFarland,  139  N.  Y.  201;  Ward  v.  Ward, 
23  Civ.  Pro.  Rep.  61. 

Where  disbursements  are  awarded  on  a  motion  they 
must  be  specifically  directed  to  be  taxed  by  the  clerk. 
Ward  v.  Ward,  supra.  Where,  therefore,  an  order  of  a 
referee  was  affirmed  "with  costs"  only,  the  respondent 
was  entitled  to  tax  ten  dollars  and  printing  disburse- 
ments only  (section  3251,  subdivision  3,  paragraph  9.) 
and  while  the  court  might  have  directed  in  the  order  that 
disbursements  should  be  taxed  by  the  clerk,  without 
such  direction,  however,  he  had  no  authority  to  fix  the 
amount.  Cassidy  v.  McFarland,  139  N.  Y.  201. 

Likewise  where  an  order  of  an  appellate  court  dis- 
misses an  appeal  with  ten  dollars  costs  of  motion  and 
affirms  the  order  appealed  from  "with  costs  of  the  appeal 
to  be  taxed  by  the  clerk  of  this  court,"  the  clerk  may 
tax  ten  dollars  motion  costs  of  appeal,  but  he  has  no  au- 
thority to  tax  disbursements  for  his  fees  on  entering 
judgment,  affidavits,  satisfaction  piece,  sheriff's  fees,  etc. 
Zinsser  v.  Herrman,  24  Misc.  689. 

The  allowance  of  disbursements  in  the  Surrogate's 
Court  is  governed  by  section  2743  of  the  Code  which 
recites  that  costs  when  awarded  by  a  decree,  "shall 


138  TAXATION  OF  COSTS 

include  all  the  disbursements  of  the  party  to  whom  they 
are  awarded,  which  might  be  taxed  in  the  supreme 
court."  So  that  the  surrogate  has  no  authority  to  allow 
any  disbursements  except  such  as  are  taxable  in  the  Su- 
preme Court.  Matter  of  Bender,  86  Hun,  570. 


CHAPTER  XXX 

COLLECTION  OF  COSTS 

§  250.  Execution  against  property. 

251.  Supplementary  proceedings. 

252.  Motion  costs. 

253.  Contempt  proceedings. 

254.  Matrimonial  actions. 

255.  Attorney's  lien  for  costs. 

256.  Execution  against  the  person. 

257.  Mandamus. 

§  250.  Execution  against  property. 

Costs  obtained  in  an  action  form  part  of,  and  become 
merged  in  the  judgment,  and  are  collected  by  execution 
in  the  same  way  and  at  the  same  time  with  the  judg- 
ment. Execution  may  be  issued  against  both  the  real 
and  personal  property  of  the  judgment  debtor. 

Section  3262  provides  in  part  that  "Costs  must  be 
taxed  by  the  clerk,  upon  the  application  of  the  party  en- 
titled thereto;"  and  the  "clerk  must  insert,  in  the  judg- 
ment or  final  order,  the  amount  of  the  costs  as  taxed." 

Section  1240  provides, 

In  either  of  the  following  cases,  a  final  judgment 
may  be  enforced  by  execution: 

1.  Where  it  is  for  a  sum  of  money  in  favor  of 
either  party;  or  directs  the  payment  of  a  sum  of 
money. 

2.  Where  it  is  in  favor  of  the  plaintiff,  in  an  action 
of  ejectment,  or  for  dower. 

139 


140  TAXATION  OF  COSTS 

3.  In  an  action  to  recover  a  chattel,  where  it 
awards  a  chattel  to  either  party. 

§  261.  Supplementary  proceedings. 

Supplementary  proceedings  may  be  maintained  to 
collect  costs  under  section  2432  of  the  Code  of  Civil  Pro., 
on  entry  of  a  money  judgment  as  well  as  on  entry  of  a 
final  order.  Matter  of  Stoddard,  128  A.  D.  759.  No 
such  proceedings,  however,  can  be  maintained  for  costs 
awarded  on  an  interlocutory  order  in  an  action,  nor  upon 
the  return  of  an  execution  against  personal  property 
under  section  779  of  the  Code  of  Civil  Pro.,  relating  to 
the  enforcement  of  costs  of  a  motion.  Matter  of  Stod- 
dard  (supra). 

§  252.  Motion  costs. 

No  judgment  can  properly  be  entered  for  the  costs  of  a 
motion.  Hyde  v.  Anderson,  112  A.  D.  76.  An  allow- 
ance of  costs  on  a  motion  is  not  a  judgment  and  is  there- 
fore not  a  lien  on  real  property.  Clinton  v.  South  Shore 
M.  G.  &  F.  Co.,  61  Misc.  339,  p.  341. 

The  costs  of  a  motion,  therefore,  which  makes  no 
final  disposition  of  the  merits  of  a  cause  of  action,  are 
not  collectible  by  execution  against  real  property  nor  by 
supplementary  proceedings.  Execution  for  such  costs 
is  governed  by  section  779  of  the  Code  of  Civil  Pro. 
Bernard  v.  Cowen,  82  Misc.  384. 
Section  779  reads  as  follows:— 

Where  costs  of  a  motion,  or  any  other  sum  of 
money,  directed  by  an  order  to  be  paid,  are  not 
paid  within  the  time  fixed  for  that  purpose  by  the 
order,  or,  if  no  time  is  so  fixed,  within  ten  days  after 


COLLECTION  OF  COSTS  141 

the  service  of  a  copy  of  the  order,  an  execution 
against  the  personal  property  only  of  the  party  re- 
quired to  pay  the  same,  may  be  issued  by  any  party 
or  person  to  whom  the  said  costs  or  sum  of  money 
is  made  payable  by  said  order,     *     *     *     ,  which 
execution  shall  be  in  the  same  form,  as  nearly  as 
may  be,  as  an  execution  upon  a  judgment,  omitting 
the  recitals  and  directions  as  to  real  property;  and 
all  the  proceedings  on  the  part  of  the  party  required 
to  pay  the  same,  except  to  review  or  vacate  the 
order,  are  stayed  without  further  direction  of  the 
court,  until  the  payment  thereof    *    *    * 
Under  section  3233,  Code  of  Civil  Pro.,  interlocutory 
costs  awarded  under  section  3232,  Code  of  Civil  Pro., 
is  governed  by  section  779  as  if  they  were  costs  of  a 
motion. 

Costs  on  the  determination  of  a  demurrer  may  be 
granted  absolutely  but  may  not  be  collected  until  the 
trial  of  the  other  issue  not  yet  disposed  of.  Cassavoy  v. 
Pattison,  101  A.  D.  128. 

Section  779,  Code  of  Civil  Pro.,  applies  to  costs  and 
disbursements  of  an  appeal  from  an  order  of  Special 
Term.  Wasserman  v.  Benjamin,  91  A.  D.  547;  also  to 
costs  granted  upon  the  denial  of  a  motion  for  a  new  trial 
on  newly  discovered  evidence.  Bankers  Money  Order 
Ass.  v.  Nachod  et  al.,  125  A.  D.  373;  Muller  v.  Brooklyn 
Heights  R.  Co.,  139  A.  D.  727. 

But  a  direction  by  the  court  to  pay  a  wife  certain  sums 
of  money  per  week  for  her  support  during  the  pendency 
of  the  action  as  prescribed  in  sections  1772  and  1773, 
Code  of  Civil  Pro.,  is  not  an  order  directing  the  payment 
of  a  "sum  of  money"  within  the  meaning  of  section  779, 


142  TAXATION  OF  COSTS 

and  an  execution  may  not  issue  to  enforce  such  order. 
Weber  v.  Weber,  93  A.  D.  149. 

§  253.  Contempt  proceedings. 

An  attorney  cannot  be  punished  for  contempt  of 
court  for  failure  to  pay  costs  of  a  motion  although  he  was 
so  directed  personally  to  pay  the  same;  because  section 
779  provides  how  such  costs  may  be  collected.  It  must  be 
done  by  execution  except  where  special  provision  is  other- 
wise made.  Obermeyer  &  L.  v.  Adinsky,  123  A.  D.  272. 

Subdivision  3,  of  section  14  of  Code  of  Civil  Pro.  limits 
the  power  of  the  court  to  punish  as  for  a  contempt  for 
the  "non-payment  of  a  sum  of  money  ordered  or  adjudged 
to  be  paid  in  a  case  where  by  law  execution  cannot  be 
awarded  for  the  collection  of  such  sum."  Kane  v.  Rose, 
87  A.  D.  101. 

Nor  can  an  attorney  be  punished  for  contempt  of 
court  for  failure  to  repay  motion  costs  when  so  ordered 
by  the  court.  The  method  of  collecting  the  same  is 
provided  for  by  the  issuance  of  an  execution  therefor 
under  section  779,  Code  of  Civil  Pro.  Forstman  v. 
Schulting,  42  Hun,  643. 

§  264.  Matrimonial  actions. 

An  attorney  may  maintain  an  action  and  obtain 
judgment  for  allowances  made  him  by  the  court  in  an 
action  for  divorce,  where  there  has  been  a  collusive  agree- 
ment by  husband  and  wife  whereby  the  alimony  was 
released.  He  is  not  restricted  for  redress  to  section  779, 
Code  of  Civil  Pro.  Turner  v.  Woolworth,  153  A.  D.  293. 
Such  costs,  however,  cannot  be  collected  by  contempt 
proceedings.  Weill  v.  Weill,  18  N.  Y.  Civ.  Pro.  Rep.  241. 


COLLECTION  OF  COSTS  143 

But  an  attachment  may  issue  for  failure  to  pay  alimony 
together  with  costs.  Lansing  v.  Lansing,  41  How.  Pr. 
248;  Flor  v.  Flor,  73  A.  D.  262. 

§  255.  Attorney's  lien  for  costs. 

An  attorney  has  a  lien  for  his  costs  upon  the  judgment 
recovered  by  him,  and  he  is  to  be  considered  as  an  "equi- 
table assignee  of  the  judgment"  to  the  extent  of  such 
lien.  A  payment  to  any  one  but  the  attorney  will  not 
act  as  a  discharge  of  such  lien.  Marshall  v.  Meech,  51 
N.  Y.  140. 

Therefore  the  lien  of  an  attorney  for  services  rendered 
and  disbursements  incurred  in  an  action,  are  superior  to 
that  of  the  parties'  right  to  set  off  judgments  rendered 
against  each  other  although  between  the  same  parties  and 
the  same  attorneys.  Smith  v.  Cayuga  Lake  Cement  Co., 
107  A.  D.  524. 

§  256.  Execution  against  the  person. 

Section  1*87  of  the  Code  of  Civil  Procedure,  provides 
that, 

Where  a  judgment  can  be  enforced  by  execution, 
as  prescribed  in  section  1240  of  this  act,  an  execu- 
tion, against  the  person  of  the  judgment  debtor 
may  be  issued  thereupon  *  *  *  in  either  of 
the  following  cases: — 

1.  Where  the  plaintiff's  right  to  arrest  the  defend- 
ant depends  upon  the  nature  of  the  action. 

2.  In  any  other  case,  where  an  order  of  arrest 
has  been  granted  and  executed  in  the  action,  and 
if  it  was  executed  against    the  judgment  debtor, 
where  it  has  not  been  vacated. 


144  TAXATION  OF  COSTS 

The  plaintiff  may,  therefore,  issue  execution  against  the 
person  of  the  defendant  although  an  order  of  arrest  was 
not  granted  in  the  action.  Finkenmaur  v.  Dempsey,  8 
N.  Y.  Civ.  Pro.  Rep.  418;  Smith  v.  Duffy,  8  id.  191. 

Where  a  defendant  is  liable  to  arrest  and  imprison- 
ment on  a  judgment  against  him  by  the  plaintiff,  a 
judgment  in  favor  of  the  defendant  for  costs  may  be  en- 
forced by  an  execution  against  the  person  of  the  plaintiff. 
Saffier  v.  Haft,  86  A.  D.  284. 

The  defendant  may,  therefore,  issue  execution  against 
the  plaintiff  for  costs  in  an  action  in  tort  (Miller  v. 
Woodhead,  5  N.  Y.  S.  88;  Davids  v.  Brooklyn  Heights 
R.  Co.,  92  N.  Y.  S.  220;  Brown  v.  Brockett,  55  How.  Pr. 
Rep.  32),  for  personal  injuries  (Saffier  v.  Haft,  supra; 
Davids  v.  Brooklyn  Heights  R.  Co.,  104  A.  D.  23).  De- 
fendant is  entitled  to  the  relief  notwithstanding  the  fact 
that  plaintiff  has  recovered  a  verdict  in  his  favor  where 
the  amount  of  such  recovery  will  entitle  defendant  to 
costs  of  the  action.  Philbrook  v.  Kellogg,  21  Hun,  238. 
In  an  action  for  assault  resulting  in  defendant's  favor, 
execution  may  issue  although  the  assault  was  not  com- 
mitted by  defendant  personally  but  by  his  agents  or 
employees.  The  right  depends  on  the  nature  of  the  ac- 
tion. Davids  v.  Brooklyn  Heights  R.  Co.,  104  A.  D.  23, 
aff'd  182  N.  Y.  526;  Losaw  v.  Smith,  109  A.  D.  754. 
Execution  will  also  be  allowed  for  injury  to  personal 
property  (Catlin  v.  Adirondack  Co.,  20  Hun,  19),  for 
conversion  (Knapp  v.  Murphy,  20  A.  D.  83;  Babcock  v. 
Smith,  19  N.  Y.  S.  817). 

Where  the  plaintiff  is  an  infant  and  is  suing  by  a  guard- 
ian at  litem,  the  latter  is  liable  to  an  execution  for  costs 
in  favor  of  defendant  in  the  same  manner  as  though  he 


COLLECTION   OF   COSTS  145 

was  the  plaintiff  in  the  action.     Miller  v.  Woodhead,  5 
N.  Y.  S.  88. 

§  257.  Mandamus. 

A  municipality  may  be  compelled  by  mandamus  to 
make  requisition  on  the  comptroller  required  by  Chap- 
ter 728  of  the  Laws  of  1896,  for  the  payment  of  a  bill  of 
costs  in  condemnation  proceedings.  People  ex  rel. 
Allison  v.  Board  of  Education,  26  A.  D.  208. 

The  provisions  of  section  2268  of  the  Code  of  Civil 
Pro.,  allowing  the  issuance  of  a  warrant  of  commitment 
against  a  person  "where  the  offense  consists  of  a  neglect 
or  refusal  to  obey  an  order  of  the  court,  requiring  the  pay- 
ment of  costs,  or  of  a  specified  sum  of  money,  and  the 
court  is  satisfied,  by  proof,  by  affidavit,  that  a  per- 
sonal demand  thereof  has  been  made,  and  that  payment 
thereof  has  been  refused  or  neglected,"  are  limited  by 
section  14,  subdivision  3,  of  the  Code  of  Civil  Pro.  to 
cases  where  no  execution  can  be  issued  either  under  sec- 
tions 1240  or  779  of  the  Code  of  Civil  Procedure,  for  the 
collection  of  the  sum  ordered  to  be  paid.  Re  Hess,  48 
Hun  586. 


ADDENDA 
SHERIFF'S  FEES 

The  following  are  some  of  the  provisions  with  reference  to 
sheriff's  fees  most  frequently  met  with.  They  are  contained  in 
section  3307  of  the  Code  in  the  following  paragraphs: 

Par.  i.  For  serving  a  summons  with  or  without  a  copy  of  the 
complaint,  or  a  notice,  one  dollar. 

But  in  the  counties  of  New  York,  Kings,  Bronx,  Queens  and 
Richmond,  one  dollar  and  a  half. 

For  serving  or  executing  an  order  of  arrest,  or  any  other  mandate 
for  the  service  or  execution  of  which  no  other  fee  is  specially  pre- 
scribed by  law,  except  a  subpoena,  one  dollar. 

But  in  the  counties  of  New  York,  Kings,  Bronx,  and  Queens 
and  Richmond,  four  dollars  for  each  person  served  or  as  to  whom 
it  is  executed. 

For  necessary  travelling  to  serve  or  execute  the  processes  six 
cents  for  each  mile  travelled,  going  and  returning. 

Par.  2.  For  levying  a  warrant  of  attachment,  against  the  prop- 
erty of  a  defendant,  or  for  executing  a  requisition  to  replevy  one 
or  more  chattels,  one  dollar. 

But  in  the  counties  of  New  York,  Kings,  Bronx,  Queens  and 
Richmond,  five  dollars. 

Par.  5.  For  notifying  jurors  drawn  to  attend  upon  a  writ  of  in- 
quiry, or  to  try  the  validity  of  a  claim  to  personal  property,  seized 
by  virtue  of  a  warrant  of  attachment  or  an  execution,  for  each 
juror  notified  twenty-five  cents.  For  attending  a  jury,  two 
dollars. 

But  in  the  counties  of  New  York,  Kings,  Bronx,  Queens  and 
Richmond,  fifty  cents  for  each  juror  notified.  For  attending  a 
jury  five  dollars. 

Par.  6.  For  receiving  an  execution  against  property,  etc.,  fifty 
cents. 

146 


SHERIFF'S  FEES  147 

In  the  counties  of  New  York,  Kings,  Bronx,  Queens  and  Rich- 
mond, one  dollar  and  fifty  cents. 

For  mileage  upon  an  execution  for  each  mile,  going  only,  ten 
cents. 

Par.  10.  For  returning  any  mandate,  which  he  is  required  by 
law  to  return,  twelve  cents;  in  the  counties  of  New  York,  Kings, 
Bronx,  Queens  and  Richmond,  twenty- five  cents. 

For  a  certified  copy  of  an  execution  and  of  the  return  of  satisfac- 
tion thereupon,  twenty-five  cents;  except  in  the  counties  of  New 
York,  Kings,  Bronx,  Queens  and  Richmond,  fifty  cents. 

Chapter  418,  L.  1892,  subd.  2,  sec.  17,  provides  that  "where  a 
warrant  of  attachment  is  vacated,  set  aside,  or  discharged  by 
order  of  the  court,  poundage  upon  the  value  of  the  property  at- 
tached not  exceeding  the  amount  specified  in  the  warrant"  may 
be  taxed,  and  the  court  may  make  an  order  requiring  the  payment 
of  the  same.  In  all  other  cases  where  there  is  a  liability  for  sheriff's 
fees  and  poundage,  actions  at  law  should  be  brought  for  the  re- 
covery of  same.  Keiser  v.  Schrier,  L.  J.  Nov.  3,  1916. 

Chapter  353,  Laws  of  1915,  County  Clerk's  Fees,  Bronx  County. 

Following  are  some  of  the  more  important  fees  that  the  Clerk 
of  the  County  of  the  Bronx  is  entitled  to  charge  in  accordance 
with  Chap.  353,  Laws  of  1915. 

Filing  transcript  of  judgment $ .  05 

For  docketing,  for  each  name  against  which  it  is  docketed  .      .05 

Certified  transcript  of  judgment 25 

Filing  instrument  which  cancels  or  amends  a  record 10 

For  entering  such  cancellation,  etc.,  for  each  name 10 

Certificate  of  discharge  of  lien 25 

Recording  of  papers,  for  each  folio 10 

Certifying  copies  of  records,  etc.,  for  each  folio 10 

Certificate  of  notice  of  appearance 50 

Docketing  deficiency  on  judgment  of  foreclosure 25 

Adjusting  bill  of  costs 25 

Filing  mechanic's  lien 10 

Docketing  same,  for  each  name 10 

Entering  judgment .  . .  .• 50 

For  certifying  printed  papers  on  appeal  3^  a  folio. 


148  TAXATION  OF  COSTS 

Chapter  446,  Laws  of  1906,  Fees  of  the  Clerk  of  the  County  of 
Kings. 

Following  are  some  of  the  more  important  fees  that  the  Clerk 
of  Kings  County  is  entitled  to  charge  and  receive. 

For  filing  transcript  of  judgment $ .  05 

For  docketing,  for  each  name  against  which  it  shall  be 

docketed 05 

For  transcript  of  judgment 10 

For  filing  instrument  of  cancellation,  etc 05 

For  entering  such  discharge,  for  each  name 10 

Certificate  of  discharge  of  lien 15 

For  recording  papers,  for  each  folio 10 

For  copies  of  records  on  file,  for  each  folio 10 

Docketing  deficiency  on  judgment  of  foreclosure,  etc 25 

Certificate  of  appearance  in  an  action 50 

Adjusting  bill  of  costs 25 

Docketing  mechanic's  lien 5° 


COSTS  ITEMIZED 

Sections  refer  to  the  Code  of  Civil  Procedure. 

I.  Costs  before  notice  of  trial. 

a.  To  plaintiff,  if  action  comes  within  §  420  of  the 

Code $i 5 .  oo 

In  every  other  action $25 .  oo 

(Code,  §  3251,  subd.  i.,  par.  i) 

b.  To  defendant $10.00 

(Code,  §  3251,  subd.  2.) 
i.  Costs  after  notice  of  trial. 

To  either  party $15 .  oo 

(Code,  §  3251,  subd.  3,  par.  i.) 

3.  Additional  defendants  served,  for  each  defendant 

Up  to  ten $  2. oo 

Above  ten $  i.oo 

To  be  taxed  by  plaintiff  only. 

(Code,  §  3251,  subd.  i,  par.  2.) 

4.  Trial  fee  for  an  issue  of  fact  to  either  party $30 .  oo 

(Code,  §  3251,  subd.  3,  par.  5.) 

5.  Trial  fee  for  the  trial  of  an  issue  of  law  to  either  party  $20.00 

(Code,  §  3251,  subd.  3,  par.  4.) 

6.  Allowance  by  statute;  to  the  plaintiff  in  foreclosure 

proceedings,  partition  or  adjudication  upon  a 
will  or  other  instrument  in  writing,  a  determi- 
nation of  a  claim  to  real  property,  or  where 
there  has  been  a  warrant  of  attachment 

10%  if  amount  is  not  over  $200. 

5%  on  next  $400. 

2%  on  the  next  $1000.    (Code,  §§  3252,  3254.) 

7.  Allowance  by  court  to  either  party  (Code,  §§3253, 

3254.) 

8.  Motion  costs,  usually  to  either  party $10.00 

(Code,  §  3251,  subd.  3,  par.  9.) 
149 


150  TAXATION  OF  COSTS 

9.  Order  of  publication  of  summons,  to  the  plaintiff.  . . .  $10.00 
(Code,  §  3251,  subd.  i,  par.  4.) 

10.  Trial  occupying  more  than  two  days,  to  either  party.   $10.00 

(Code,  §  3251,  subd.  3,  par.  5.) 

11.  Procuring  injunction  order  or  order  of  arrest,  to  plain- 

tiff   $10.00 

(Code,  §  3251,  subd.  i,  par.  5.) 

12.  Appointment  of   guardian   of   infant   defendant,    to 

plaintiff $10.00 

(Code,  §  3251,  subd.  i,  par.  3.) 

13.  Examination  of  witness  or  party  before  trial,  to  either 

party $10.00 

(Code,  §  3251,  subd.  3,  par.  2.) 

14.  Attending  and  taking  deposition,  to  either  party fio.oo 

(Code,  §  3251,  subd.  3,  par.  2.) 

15.  Drawing  interrogatories  to  annex  to  a  commission, 

to  either  party $10 .  oo 

(Code,  §  3251,  subd.  3,  par.  3.) 

16.  Making  and  serving  a  case,  to  either  party  appellant  $20.00 

(Code,  §  3251,  subd.  3,  par.  6.) 

17.  Making  and  serving  amendments  to  case,  to  either 

party  respondent $20 .  oo 

(Code,  §  3251,  subd.  3,  par.  7.) 

18.  Making  and  serving  a  case  of  more  than  fifty  folios, 

to  either  party  appellant $30. oo 

(Code,  §  3251,  subd.  3,  par.  6.) 

19.  Term  fees,  to  either  party. 

a.  In  the  Supreme  Court  ten  dollars  for  each  term 

not  exceeding  five  at  which  the  case  is  tried. 

b.  In  the  City  Court  only  one  term  is  allowed  ex- 

cluding the  term  at  which  it  is  tried. 
(Code,  §  3251,  subd.  3,  par.  n.) 

c.  In  the  Appellate  Division  ten  dollars  for  each 

term  not  exceeding  five,  excluding  the  term  at 
which  the  case  is  argued. 

(Code,  §3251,  subd.  4.) 


ITEMS  OF  DISBURSEMENTS  151 

d.  In  the  Court  of  Appeals  ten  dollars  for  each  term 
not  exceeding  ten,  excluding  the  term  at  which 
the  case  is  argued. 

(Code,  §  3251,  subd.  5,  par.  3.) 

20.  Motion  for  new  trial,  to  either  party  at  special  term 

Upon  a  case  before  argument $20 .  oo 

Upon  a  case  for  argument $40 .  oo 

(Code,  §  3251,  subd.  3,  par.  8,  subd.  4.) 

21.  Proceedings  before  and  after  granting  of  a  new  trial 

to  either  party $25 .  oo 

(Code,  §  3251,  subd.  3,  par.  10.) 

22.  Application  for  judgment  on  special  verdict  to  either 

party 

Before  argument $20 .  oo 

For  argument $40 .  oo 

(Code,  §  3251,  subd.  3,  par.  8,  subd.  4.) 

23.  Appeal  to  Appellate  Term  or  Appellate  Division,  to 

either  party 

Before  argument $20. oo 

For  argument $40 .  oo 

(Code,  §  3251,  subd.  4.) 

24.  Appeal  to  Court  of  Appeals,  to  either  party 

Before  argument $30 .  oo 

For  argument $60 .  oo 

(Code,  §  3251,  subd.  5,  par.  i.) 

25.  Damages  in  Court  of  Appeals  for  delay,  to  either 

party,  not  exceeding  10%  of  the  amount  of  the 
judgment. 

(Code,  §  3251,  subd.  5,  par.  4.) 

ITEMS  OF  DISBURSEMENTS 

26.  Paid  for  official  searches $ 

(Code,  §§  3256,  3304.) 

27.  Paid  referee's  report,  to  either  party $ 

(Code,  §§  3256,  3296.) 

28.  Paid  referee's  fees,  to  either  party $ 

(Code,  §§  3256,  3296.) 


152 


TAXATION  OF  COSTS 


29.  Commissioner's  fees,  to  either  party $ 

(Code,  §  3256.) 

30.  Clerk's  fees  on  trial $  i.oo 

No  such  fee  in  the  City  Court. 

(Code,  §3301,  par.  2.) 

31.  Clerk's  fees  on  filing  notice  of  pendency  of  action  to 

plaintiff,  ice  a  folio $ 

(Code,  §  3304.) 

32.  Clerk's  fees  for  entering  judgment,  to  either  party.  .  .  $     .50 

(Code,  §  3301,  par.  3,  §  S1^.) 

33.  Affidavits  and  acknowledgments,  to  either  party 

For  affidavits,  1 2C  each $ 

For  acknowledgments,  25C  each ' $ 

(Code,  §  3298.) 

34.  Serving  copies  summons  and  complaint,  to  plaintiff, 

In  the  counties  of  New  York,  Kings,  Bronx, 

Queens  and  Richmond $  i .  50 

In  the  other  counties $  i.oo 

6c.  a  mile  allowed  for  each  mile  travelled, 
going  and  returning. 

(Code,  §3307,subd.  i.) 

35.  Satisfaction  piece,  to  either  party 

For  filing,  250,  for  certificate,  i2C $     .37 

(Code,  §§  3304,  par.  9,  3301,  par.  7,  3i64a.) 

36.  Transcript  of  judgment  and  filing  thereof,  to  either 

party 

For  transcript,  i2c;  for  filing,  6c $     .18 

(Code,  §  3301,  pars.  7,  8,  §§  3304,  3i64a.) 

37.  Certified  copy  of  judgment,  to  either  party,  3C  a 

folio,  least  charge  25C. 

(Code,  §  33053.) 

38.  Certified  copy  orders,  to  either  party,  3C  a  folio,  least 

charge  25C. 

(Code,  §  33°5a.) 

39.  Postage,  to  either  party $ 

None  allowed  in  the  City  Court. 
(Code,  §  3256.) 


ITEMS  OF  DISBURSEMENTS  153 

40.  Jury  fee  (250  for  each  juror) $3.00 

(Code,  §  3313,  allowed  to  party  who  pays  fee.) 

41.  Stenographer's  fees,  to  either  party  when  ordered  un- 

der stipulation  of  parties  or  by  order  of  court, 
in  3rd,  4th,  5th,  6th,  7th,  and  8th  judicial  dis- 
tricts, 6^  a  folio,  in  all  the  others  iod  a  folio. 
(Code,  §§33n,  3256.) 

42.  Sheriff's  fees  on  execution, to  either  party  in  counties  of 

New  York,  Kings,  Bronx,  Queens  and  Rich- 
mond 

For  receiving  the  execution $  i .  50 

For  return .25 

Mileage  10^  for  each  mile  one  way  only .10 

$  1.85 
In  other  counties. 

For  receiving  execution .50 

For  return .12 

Mileage  10^  for  each  mile  one  way  only .10 

72 
(Code,  §  3307,  subds.  6,  10.) 

43.  Sheriff's  fees  on  attachment  or  replevin. 

(Code,  §  3307,  subds.  i  and  2.) 
In  New  York,  Kings,  Queens,  Bronx  and  Richmond 

counties 
Attachment  or  replevin. 

For  levying  warrant  without  summons $  5.00 

For  levying  warrant  with  summons 6 . 50 

For  services  of  each  additional  warrant i .  50 

Mileage  6^  a  mile  each  way. 

For  filing  inventory  or  description  of  property .  SQC  folio 
In  other  counties 

For  levying  without  summons $  i.oo 

For  levying  with  summons 2 .  oo 

Mileage  6fi  each  way. 

For  filing  inventory  or  description  of  property .  25^  a  folio 


154  TAXATION  OF  COSTS 

44.  Sheriff's  fees  on  inquest  before  Sheriff's  jury 

For  notifying  jurors  to  attend  in  New  York, 
Kings,  Queens,  Bronx  and  Richmond  coun- 
ties, 50^.  each $6. oo 

In  other  counties,  25^.  each. 
For   attending   a   jury  in   New   York,   Kings, 

Queens,  Bronx  and  Richmond  counties ...  $  5  oo 
In  other  counties  $2 .  oo. 

(Code  §  3307,  subd.  5.) 

45.  Sheriff's  term  fee .50 

(Code,  §  3307,  subd.  4.) 

In  New  York  County  this  is  included  in  fee  paid  on 
filing  note  of  issue  placing  the  case  on  the  cal- 
endar. Where  the  sheriff  receives  an  annual 
salary,  this  fee  should  not  be  charged. 

46.  Coroner's  fees  on  execution,  same  as  sheriff's $ 

(Code,  §  3310.) 

47.  Extract  from  the  minutes .10 

(Code,  §§  3301,  3i64a,  par.  5.) 

48.  Paid  for  printing  cases $ 

(Code,  §  3256.) 

49.  Paid  for  printing  points $ 

(Code,  §  3256.) 

50.  Paid  for  copy  of  stenographer's  minutes $ 

(Code,  §  3256.) 

5 1 .  Paid  for  copies  of  following  papers $ 

Where  there  are  more  than  ten  defendants,  the  ex- 
pense for  printing  the  summons  and  complaint 
may  be  taxed. 

52.  Filing  return  to  Court  of  Appeals $ 

(Code,  §  3300.) 

53.  Paid  for  filing  note  of  issue,  to  either  party  who  paid 

fee,  in  New  York  and  Bronx  Supreme  Courts 

and  City  Court $3.00 

Kings  County,  no  charge 

Bronx  County  Court .75 

(Code,  §  3i64a  for  City  Court.) 


ADDITIONAL  ITEMS  NOT  TO  BE  OVERLOOKED      155 

54.  Attendance  of  witnesses,  to  either  party 

Fees  50^  a  day  and  8d  a  mile  one  way  only  if  wit- 
ness resides  three  miles  or  more  from  place  of 
attendance. 

(Code,  §3318.) 

ADDITIONAL  ITEMS  NOT  TO  BE  OVERLOOKED 

55.  Paid  for  publication  of  summons,  etc $ 

(Code,  §  3256.) 

56.  Exceptions  ordered  heard  at  Appellate  Division 

Before  argument $20 .  oo 

For  argument 40 .  oo 

(Code,  §  3251,  subd.  4.) 

57.  Appeal  from  an  order  of  the  City  Court 10. oo 

(Code,  §  3251,  subd.  4,  and  §  3189.) 

58.  Increased  costs,  one-half  additional $ 

(Code,  §§  3258,  3259.) 

59.  Recording  mortgage  in  foreclosure $ 

(Code,  §  3291.) 

60.  Filing  notice  of  appeal  in  Court  of  Appeals .50 

(Code,  §  3300.) 

61.  Paid  for  remittitur  Court  of  Appeals,  ice  a  folio $ 

(Code,  §  3300.) 

62.  Paid  for  certifying  printed  record  on  appeal $ 

(3^  a  folio,  Code,  §  3305a.) 

63.  Clerk's  fee  for  taxing  costs,  Kings  and  Bronx  Counties  $     .  25 

(Kings  County,  Chap.  446,  Laws  of  1906;  Bronx 
County  Court,  Chap.  353,  Laws  1915.) 

Disbursements  incurred  in  the  City  Court  are  governed  by  sec- 
tion 31640  of  the  Code;  in  Kings  County,  by  Chap.  446,  Laws  1906; 
and  those  in  Bronx  County,  Chap.  353,  Laws  1915. 


FORMS 


Code  provisions  and  statutory  enactments  relating  to  each  of  the 
items  will  be  found  under  "Itemized  Costs"  and  "Itemized  Dis- 
bursements" under  the  corresponding  numbers. 

FORM  I 

Bill  of  Costs  Taxed  by  Plaintiff  in  an  Action  Within  Sec.  420 
of  the  Code,  on  Default  of  Defendant  to  Appear  or 
Answer 

Court 


against 


Plaintiff 


Defendant 


Costs  of 


Costs 

la.  Costs  by  statute $i 5 . oo 

3.  Costs  for  additional  defendants  served  ($2  each). .  . 

Disbursements 

32.  Clerk's  fee  on  entry  of  judgment .50 

33.  Affidavits  and  acknowledgments   (126  for  affidavit, 

25«(  for  acknowledgment) $ 

34.  Service  of  summons  and  complaint  (In  New  York, 

Kings,  Bronx,  Queens,  and  Richmond  coun- 
ties) 1 i .  50 

1  In  other  counties,  $1.00. 
156 


FORMS  157 

35.  Satisfaction  piece  (25^),  certificate  (12^) .37 

36.  Transcript  of  judgment  and  filing  thereof .18 

42.  Sheriff's  fees  on  execution  (New  York,  Kings,  Bronx, 

Queens,  and  Richmond  counties,  $1.75  and 
10^  a  mile)  1 

STATE  OF  NEW  YORK  1 

r  ss: 
COUNTY  OF  J 

the  attorney  for  the in  the 

above  entitled  action,  being  duly  sworn,  says  that  the  foregoing 
disbursements  have  been  made  in  said  action  or  may  be  neces- 
sarily made  or  incurred  therein  and  that  they  are  reasonable  in 
amount. 

Sworn  to  before  me  this 
day  of 19     . 

Notice  of  Adjustment 

Take  notice,  that  the  within  is  a  copy  of  the  items  of  the 
Costs  and  Disbursements  in  the  within  action,  and  that   the 

same  will  be  adjusted  by  the  Clerk  of  the 

Court, at  his  office,  in 

on  the day  of 19 .  . . ,  at o'clock 

in  the noon  of  that  day  and  the  amount  inserted  in  the 

Judgment  Roll. 

Yours,  etc. 

Att'y  for 

To 

Att'y  for 

FORM  H 

Bill  of  Costs  Taxed  by  Plaintiff  on  Confession  of  Judgment 
by  Defendant 

The  bill  to  be  submitted  is  the  same  as  Form  I,  except  that  there 
are  no  fees  to  be  charged  for  the  service  of  summons  and  complaint, 
nor  any  allowance  for  additional  defendants  served. 
1  In  other  counties,  620  and  IDC  a  mile. 


158  TAXATION  OF  COSTS 

FORM  III 

Bill  of  Costs  Taxed  by  Plaintiff  in  an  Action  not  within  Sec. 
420  of  the  Code,  Where  an  Inquest  is  Taken  Before  a 
Sheriff's  Jury. 

Court 


against 


Plaintiff 


Defendant 


Costs  of 


Costs 

la.  Costs  before  notice  of  trial $25 .00 

3.  Additional  defendants  served  ($2  each) $ 

Disbursements 

32.  Clerk's  fee  on  entering  judgment .50 

33.  Affidavits  and  acknowledgments  (12^  for  affidavit,  25^ 

for  acknowledgment) $ 

34.  Service  of  summons  and  complaint  (In  New  York, 

Kings,  Bronx,  Queens,  and  Richmond  coun- 
ties) 1 i  .50 

35.  Satisfaction  piece  (25^)  and  certificate  (12^) .37 

36.  Transcript  of  judgment  (12^)  and  filing  (6^) .18 

39.  Postage  (not  allowed  in  City  Court) $ 

40.  Sheriff's  jury 3  .00 

42.  Sheriff's  fees  on  execution  (New  York,  Kings,  Bronx, 

Queens,  and  Richmond  counties,  $1.75  and  10^ 
a  mile)  2 

1  In  other  counties,  Si.oo. 

*  In  other  counties,  6ac  and  IDC  a  mile. 


FORMS  159 

44.  Sheriff's  fees  ($6  for  notifying  Jurors,  $5  for  Sheriff's 
attendance,  in  New  York,  Kings,  Bronx, 
Queens,  and  Richmond  counties) $  11.00 

STATE  OF  NEW  YORK 
COUNTY  OF 

. . .  : the  attorney  for  the in  the  above  en- 
titled action,  being  duly  sworn,  says  that  the  foregoing  disburse- 
ments have  been  made  in  said  action  or  may  be  necessarily  made 
or  incurred  therein  and  that  they  are  reasonable  in  amount. 

Sworn  to  before  me  this . 
day  of. ......     19    . 

(Note.  "Notice  of  Adjustment  to  be  found  in  Form  I). 

FORM  IV 

Bill  of  Costs  for  Plaintiff  on  a  Trial  before  Court  and  Jury 
in  an  Action  either  Under  Sec.  420  or  Otherwise 

Court 


against 


Plaintiff 


Defendant 


Costs  of 


Costs 

la.  Costs  before  notice  of  trial  ($15  in  an  action  under 

§  420) $25.00 

2.  Costs  after  notice  of  trial 15 .  oo 

3.  Additional  defendants  served  ($2  for  each  defendant) 

4.  Trial  of  an  issue  of  fact 30 .  oo 

8.  Motion  costs  (if  any,  $10) 


i6o  TAXATION  OF  COSTS 

9.  Order  of  publication  (if  any,  $10) $ 

10.  Trial  occupied  more  than  two  days  ($10) 

11.  Procuring  order  of  arrest  (if  any,  $10) 

12.  Appointment  of  guardian  of  infant  defendant  (if  any, 

$10) 

13.  Examination  of  witness  or  party  before  trial  (if  any, 

$10)  ' 

14.  Attending  and  taking  deposition  (if  any,  $10)  * 

15.  Drawing  interrogatories  to  annex  to  commission  (if 

any,  $10)  3 

19.  Term  fees  (only  one  term  allowed  in  City  Court) ...     10.00 

20.  Motion  for  a  new  trial  (on  newly  discovered  evidence, 

$60)  * 

21.  Proceedings  after  granting  of  and  before  new  trial  (if 

any,  $25)  5 

Disbursements 

26.  Paid  for  official  searches  (if  any) 

27.  Referee's  report  (if  any) 

28.  Referee's  fees  (if  any,  $10  a  day) 

30.  Clerk's  fee  (not  in  City  Court) i .  oo 

32.  Clerk's  fee  on  entering  judgment .50 

33.  Affidavits  (12^)  and  acknowledgments  (25^) 

34.  Serving  copy  summons  and  complaint  (New  York, 

Kings,  Queens,  Bronx  and  Richmond  coun- 
ties) 8 i .  50 

1  Taxable  by  the  successful  party  although  the  order  was  obtained 
by  the  adverse  party.     Only  one  fee  of  $10  allowed  although  several 
witnesses  may  have  been  examined. 

2  Party  or  witness  is  entitled  to  the  fee  when  he  attends  ready  to  be 
examined,  although  the  examination  is  waived  and  is  never  had. 

3  But  one  charge  can  be  made  although  separate  interrogatories  have 
been  drawn  for  several  witnesses. 

4  Costs  allowed  are  the  same  as  those  allowed  on  appeal,  $20  before 
argument  and  $40  for  argument. 

8  This  item  may  be  taxed  as  many  times  as  a  new  trial  is  had  pursuant 
to  an  order  of  the  court. 
6  In  other  counties,  $1.00. 


FORMS  161 

35.  Satisfaction  piece  (25^)  and  certificate  of  satisfaction  $ 

(i2/) .37 

36.  Transcript  of  judgment  (12^)  and  filing  (6fi .18 

38.  Certified  copies  of  orders  (if  any,  3^  a  folio,  not  less 

than  25^) 

39.  Postage  (not  in  City  Court) 

40.  Jury  fees 3 .  oo 

42.  Sheriff's    fees    on    execution    (New    York,    Kings, 

Queens,  Bronx,  and  Richmond  counties  $1.75 
and  10^  a  mile)  x 
47.  Extract  from  the  minutes .10 

53.  Filing  note  of  issue 3 .00 

54.  Witness  fees,  (50^  a  day  and  8«(  a  mile  going  one  way)2 
(      )  days  (         )  miles 

STATE  OF  NEW  YORK  ) 
COUNTY  OF 

the  Attorney  for  the in  the  above- 
entitled  action,  being  duly  sworn,  says  that  the  foregoing  disburse- 
ments have  been  made  or  may  be  necessarily  made  or  incurred  in 
said  action  and  are  reasonable  in  amount,  and  that  the  persons 
named  as  witnesses,  attended  as  such  witnesses  on  the  Trial  of 
said  action  the  number  of  days  set  opposite  their  names;  that 
said  persons  resided  the  number  of  miles  set  opposite  their  names, 
from  the  place  of  said  trial;  and  each  of  said  persons,  as  such 
witness  as  aforesaid,  necessarily  travelled  the  number  of  miles  so 
set  opposite  his  name,  in  traveling  to,  and  the  same  distance  in 
returning  from  the  said  place  of  trial;  and  that  the  copies  of 
document  or  papers  as  charged  herein  were  actually  and  neces- 
sarily obtained  for  use. 

Sworn  to  before  me,  this day 

of 191 

(Note.  "  Notice  of  Adjustment  "  to  be  found  in  Form  I.) 

1  In  other  counties,  620  and  loc  a  mile. 

2  Mileage  allowed  is  8c  a  mile  going  one  way  and  only  once,  provided 
witness  resides  3  miles  or  more  from  place  of  attendance.    Witness  fee  is 
500  a  day  for  each  day's  attendance. 


162  TAXATION  OF  COSTS 

FORM  V 

Bill  of  Costs  to  Be  Taxed  by  Defendant  in  an  Action  Tried 
before  a  Court  and  Jury 

Court 


against 


Plainti/ 


Defendant 


Costs  of 


Costs 

ib.  Costs  before  notice  of  trial $10.00 

2.  Costs  after  notice  of  trial 15 .  oo 

4.  Trial  fee  issue  of  fact 30 .  oo 

8.  Motion  costs  (if  any,  $10) 

10.  Trial  occupied  more  than  two  days  (if  any,  $10) 

13.  Examination  of  witnesses  before  trial  (if  any,  f  10)  1. . 

14.  Attending  and  taking  deposition  (if  any,  $10)  2.  . .  . 

15.  Drawing  interrogatories  to  be  annexed  to  commission 

($io)3 

19.  Term  fees  (only  one  term  fee  allowed  in  the  City 

Court) 10 .  oo 

1  Taxable  by  the  successful  party  although  the  order  was  obtained  by 
the  adverse  party.    Only  one  fee  of  $10  allowed  although  several  wit- 
nesses may  have  been  examined. 

2  Party  or  witness  is  entitled  to  the  fee  when  he  attends  ready  to  be 
examined,  although  the  examination  is  waived  and  is  never  had. 

3  But  one  charge  can  be  made  although  separate  interrogatories  have 
been  drawn  for  several  witnesses. 


FORMS  163 

20.  Motion  for  a   new   trial  on  newly  discovered  evi- 

dence ($60)  l 

2 1 .  Proceedings  after  granting  of  and  before  new  trial  ($2  5) 2 

Disbursements 

26.  Paid  for  official  searches 

27.  Referee's  report  (if  any) 

28.  Referee's  fees  ($10  a  day) 

29.  Commissioner's  fees  (if  any) 

30.  Clerk's  fees  (not  allowable  in  the  City  Court) $  i .  oo 

32.  Clerk's  fees  on  entry  of  judgment .50 

35.  Satisfaction  piece  (25^),  certificate  of  satisfaction  (12^)         .37 

36.  Transcript  of  judgment  (12$  and  filing  (6t() .18 

37.  Certified  copy  of  judgment  (if  any,  3^  a  folio) 

38.  Certified  copies  of  orders  (if  any,  3^  a  folio) 

39.  Postage  (not  in  City  Court) 

42.  Sheriff's  fees  on  execution  (New  York,  Kings,  Bronx, 

Queens,   and  Richmond  counties   $1.75   and 

io£  a  mile)  3 

47.  Extract  from  the  minutes .10 

54.  Witness  fees  (50^  a  day  and  8<2  a  mile  going  one  way)  4 

(      )  days  (         )  miles 

(      )  days  (         )  miles 

STATE  OF  NEW  YORK] 

t    SS° 

COUNTY  OF  J  " 

the  Attorney  for  the in  the  above- 
entitled  action,  being  duly  sworn,  says  that  the  foregoing  disburse- 
ments have  been  made  or  may  be  necessarily  made  or  incurred  in 
said  action  and  are  reasonable  in  amount,  and  that  the  persons 

1  Costs  allowed  are  the  same  as  those  allowed  on  appeal,  $20  before 
argument  and  $40  for  argument. 

2  This  item  may  be  taxed  as  many  times  as  a  new  trial  is  granted  pur- 
suant to  an  order  of  the  court. 

3  In  other  counties,  620  and  zoc  a  mile. 

4  Mileage  allowed  is  8c  a  mile  going  one  way  and  only  once,  provided 
witness  resides  3  miles  or  more  from  place  of  attendance.    Witness  fee  is 
500  a  day  for  each  day's  attendance. 


164  TAXATION  OF  COSTS 

named  as  witnesses,  attended  as  such  witnesses  on  the  Trial 
of  said  action  the  number  of  days  set  opposite  their  names;  that 
said  persons  resided  the  number  of  miles  set  opposite  their  names, 
from  the  place  of  said  trial;  and  each  of  said  persons,  as  such 
witness  as  aforesaid,  necessarily  traveled  the  number  of  miles 
so  set  opposite  his  name,  in  traveling  to,  and  the  same  distance 
in  returning  from  the  said  place  of  trial;  and  that  the  copies  of 
document  or  papers  as  charged  herein  were  actually  and  necessarily 
obtained  for  use. 

Sworn  to  before  me,  this day 

of 191    . 

(Note.  "Notice  of  Adjustment"  to  be  found  in  Form  I). 

FORM  VI 

Bill  of  Costs  to  be  Taxed  by  the  Plaintiff  on  an  Inquest  Be- 
fore the  Court  and  a  Jury 

The  bill  to  be  submitted  is  the  same  as  Form  IV. 
If  the  Inquest  is  before  a  court  without  a  jury,  the  trial  fee  of 
$30  should  be  taxed,  but  not  a  jury  fee  of  $3. 

FORM  VII 

Bill  of  Costs  to  be  Taxed  by  Either  Side  on  Entry  of  an  Inter- 
locutory Judgment 

Court 


against 


Plaintiff 


Defendant 


Costs  of 


Costs 

2.  Costs  after  notice  of  trial $i  5 .  oo 

5.  Costs  for  trial  of  an  issue  of  law 20 .  oo 


FORMS 


165 


FORM  VIII 

Bill  of  Costs  to  be  Taxed  by  Appellant  on  Reversal  of  Judg- 
ment by  the  Appellate  Term  or  Appellate  Division 

Court 


against 


Plainti/ 


Defendant 


Costs  of 


Costs 

16.  Making  and  serving  a  case $  20.00 

18.  Case  more  than  fifty  folios  ($10  additional) 

23.  Costs  before  argument  (in  Appellate  Term  or  Appellate 

Division) 20 .  oo 

23.  Costs  for  argument  (in  Appellate  Term  or  Appellate 

Division) 40 .  oo 

Disbursements 

32.  Clerk's  fee  on  entry  of  judgment .50 

33.  Affidavits  (12^)  and  acknowledgments  (25*!) 

35.  Satisfaction  Piece  (25^)  and  Certificate  of  Satisfac- 

tion (12^) .37 

36.  Transcript  of  judgment  (12^)  and  filing  (6fi .18 

42.  Sheriff's  fees  on  execution  (New  York,  Kings,  Bronx, 

Queens,  and  Richmond  counties,  $1.75  and  jo^f 
a  mile)  J 

1  In  other  counties,  620  and  xoc  a  mile. 


i66 


TAXATION  OF  COSTS 


48.  Paid  printing  cases  l 

49.  Paid  printing  points  ' 

50.  Paid  for  copy  of  stenographer's  minutes  2 . 

STATE  OF  NEW  YORK 
COUNTY  OF 

the  attorney  for  the in  the  above  en- 
titled action,  being  duly  sworn,  says  that  the  foregoing  disburse- 
ments have  been  made  in  said  action  or  may  be  necessarily  made 
or  incurred  therein  and  that  they  are  reasonable  in  amount. 

Sworn  to  before  me  this . 
day  of 19    . 

(Note.  "Notice  of  Adjustment"  to  be  found  in  Form  I.) 

FORM  IX 

Costs  to  be  Taxed  by  Respondent  on  an  Affirmance  of  Judg- 
ment either  by  the  Appellate  Term  or  Appellate  Division 

Court 


against 


Plaintiff 


Defendant 


Costs  of 


Costs 
17.  Preparing  and  serving  amendments  to  the  case $20.00 

1  The  printer's  receipted  bill  should  be  submitted  to  the  taxing  officer 
on  taxation. 

2  No  taxation  of  costs  for  moneys  paid  for  the  summation  of  attorneys 
nor  for  excess  of  legal  rate  because  of  special  work,  or  hurry  work. 


FORMS  167 

23.  Costs  before  argument  (in  Appellate  Term  or  Ap- 
pellate Division) $  20.02 

23.  Costs  for  argument  (in  Appellate  Term  or  Appellate 

Division) 40 .  oo 

Disbursements 

32.  Clerk's  fee  on  entry  of  judgment .50 

33.  Affidavits  (12^)  and  acknowledgments  (25$ 

35.  Satisfaction  piece    (25^)   and  certificate  of  satisfac- 

tion (i2f) 37 

36.  Transcript  of  judgment  (12 f)  and  filing  (6/1) .18 

42.  Sheriff's  fees  on  execution  (New  York,  Kings,  Bronx, 

Queens,  and  Richmond  counties,  $1.75  and  106 
a  mile)  1 

49.  Paid  printing  points  2 

50.  Paid  for  copy  of  stenographer's  minutes  3 

STATE  OF  NEW  YORK 
COUNTY  OF 

the  attorney  for  the in  the  above  en- 
titled action,  being  duly  sworn,  says  that  the  foregoing  disburse- 
ments have  been  made  in  said  action  or  may  be  necessarily  made 
or  incurred  therein  and  that  they  are  reasonable  in  amount. 

Sworn  to  before  me  this . 
day  of. ..'.....  19     . 

(Note.  "Notice  of  Adjustment"  to  be  found  in  Form  I.) 

1  In  other  counties,  620  and  zoc  a  mile. 

2  The  printer's  receipted  bill  should  be  presented  to  the  taxing  officer 
on  taxation. 

3  Neither  attorney's  summation  nor  excess  rate  is  taxable.    This  item 
cannot  be  taxed  when  the  appellant  offered  a  copy  of  his  minutes  to  the 
respondent  with  which  to  prepare  his  amendments  and  the  latter  refused 
to  accept  them. 


168  TAXATION  OF  COSTS 

FORM  X 

Bill  of  Costs  to  be  Taxed  by  Defendant  on  Dismissal  of 
Complaint  Granted  on  Motion,  for  Failure  to  Prosecute 
the  Action 

Court 


against 


Plaintijff 


Defendant 


Costs  of 


Costs 

ib.  Costs  before  notice  of  trial $10 .  oo 

8.  Motion  costs 10.00 

(If  issue  has  been  joined  and  notices  of  trial  served  and 
cause  placed  on  the  calendar,  the  following  items  of 
costs  are  taxable.) 

2.  Costs  after  notice  of  trial 15.  oo 

19.  Term  fees  (only  one  term  in  the  City  Court) 

Disbursements 

23.  Clerk's  fee  on  entering  judgment .50 

33.  'Affidavits  (12$  and  acknowledgments  (25^) 

35.  Satisfaction  piece   (25^)   and  certificate  of   satisfac- 

tion (12^) .37 

36.  Transcript  of  judgment  (12^)  and  filing  (6/0 .18 

42.  Sheriff's  fees  on  execution  (New  York,  Kings,  Bronx, 

Queens,  and  Richmond  counties,  $1.75  and  10^ 
a  mile)  l 

1  In  other  counties,  620  and  toe  a  mile. 


FORMS  169 

STATE  OF  NEW  YORK     1 
COUNTY  OF 

the  attorney  for  the in  the  above  en- 
titled action,  being  duly  sworn,  says  that  the  foregoing  disburse- 
ments have  been  made  in  said  action  or  may  be  necessarily  made 
or  incurred  therein  and  that  they  are  reasonable  in  amount. 

Sworn  to  before  me  this 

day  of 19    . 

(Note.  "Notice  of  Adjustment  "  to  be  found  in  Form  I.) 

FORM  XI 

Bill  of  Costs  to  be  Taxed  by  the  Defendant  upon  Dismissal 
of  Complaint  Either  on  Call  of  the  Calendar  or  After 
a  Trial  of  the  Issues 

Court 


against 


Plaintiff 


Defendant 


Costs  of 


Costs 

ib.  Before  notice  of  trial , $10.00 

2.  After  notice  of  trial 15.00 

4.  Trial  of  an  issue  of  fact 30 .  oo 

19.  Term  fee  (only  one  term  in  City  Court) 10 .  oo 

Disbursements 

30.  Clerk's  fee  (not  in  the  City  Court) i  .00 

32.  Clerk's  fee  on  entering  judgment .50 


1 7o  TAXATION  OF  COSTS 

33.  Affidavits  (12^),  acknowledgment  (25^) $ 

35.  Satisfaction  piece  (25^)  and  certificate  of   satisfac- 

tion (12^) -37 

36.  Transcript  of  judgment  (12^!)  and  filing  (6^) 18 

39.  Postage  (not  in  the  City  Court) 

42.  Sheriff's  fees  on  execution  (New  York,  Kings,  Bronx, 
Queens,  and  Richmond  counties,  $1.75  and 
io£  a  mile)  l 

47.  Extract  from  minutes 10 

STATE  OF  NEW  YORK  ) 

'   SS' 

COUNTY  OF 

the  attorney  for  the in  the  above  en- 
titled action,  being  duly  sworn,  says  that  the  foregoing  disburse- 
ments have  been  made  in  said  action  or  may  be  necessarily  made 
or  incurred  therein  and  that  they  are  reasonable  in  amount. 

Sworn  to  before  me  this ] 

day  of 19     . 

(NOTE.    "  Notice  of  Adjustment  "  to  be  found  in  Form  I.) 

FORM  XII 

Bill  of  Costs  to  be  Taxed  by  the  Defendant  on  the  Discon- 
tinuance of  an  Action  by  the  Plaintiff 

Court 


against 


Plainti/ 


Defendant 


Costs  of 


1  In  other  counties,  620  and  ice  a  mile. 


FORMS  171 

Costs 

ib.  Before  notice  of  trial $10 .  oo 

2.  After  notice  of  trial 15 .00 

4.  Trial  fee  (sometimes  allowed)  1 

19.  Term  fee  2 10 .  oo 

A  judgment  for  costs  on  the  discontinuance  of  an  action  cannot 

be  entered,  nor  can  any  disbursements  be  taxed. 

FORM  XIII 

Bill  to  be  Taxed  by  the  Plaintiff  on  the  Withdrawal  of  a 
Juror  to  Permit  the  Defendant  to  Amend  His  Answer 

Court 


against 


Plaintiff 


Defendant 


Costs  of 


Costs 

la.  Before  notice  of  trial  (when  within  §  420  of  Code,  $15)  $25 .00 

2.  After  notice  of  trial 15 . oo 

4.  Trial  of  an  issue  of  fact 30 .  oo 

19.  Term  fees  (only  one  term  in  the  City  Court) 10.00 

1  A  trial  fee  may  be  allowed  where  the  case  appears  on  the  day  calendar 
and  is  marked  ready  for  trial  and  thereafter  an  order  of  discontinuance 
is  entered. 

*  No  term  fee  will  be  taxed  when  the  order  of  discontinuance  is  entered 
the  same  term  it  appears  on  the  calendar. 


172  TAXATION  OF  COSTS 

Disbursements 

33.  Affidavits  (12^)  and  acknowledgments  (256) $ 

34.  Service  of  summons  and  complaint  (New  York,  Kings, 

Bronx,  Queens,  and  Richmond  counties)  "...       i .  50 

38.  Certified  copy  of  order  (if  any) 

40.  Jury  fee 3  oo 

53.  Note  of  issue 3  -  oo 

54.  Witness  fees  (if  any)  2 

(        )  days  (  )  miles 

STATE  OF  NEW  YORK 
COUNTY  OF 

the  attorney  for  the in  the  above- 
entitled  action,  being  duly  sworn,  says  that  the  foregoing  disburse- 
ments have  been  made  or  may  be  necessarily  made  or  incurred  in 
said  action  and  are  reasonable  in  amount,  and  that  the  persons 
named  as  witnesses,  attended  as  such  witnesses  on  the  Trial  of 
said  action  the  number  of  days  set  opposite  their  names;  that 
said  persons  resided  the  number  of  miles  set  opposite  their 
names,  from  the  place  of  said  trial;  and  each  of  said  persons,  as 
such  witness  as  aforesaid,  necessarily  traveled  the  number  of  miles 
so  set  opposite  his  name,  in  traveling  to,  and  the  same  distance 
in  returning  from  the  said  place  of  trial;  and  that  the  copies  of 
documents  or  papers  as  charged  herein  were  actually  and  nec- 
essarily obtained  for  use. 

Sworn  to  before  me,  this day 

of 191     . 

(Note.  "Notice  of  Adjustment"  to  be  found  in  Form  I.) 

1  In  other  counties,  $1.00. 

2  Mileage  allowed  is  8c.  a  mile  going  one  way  and  only  once,  pro- 
vided witness  resides  3  miles  or  more  from  place  of  attendance.    Wit- 
ness fee  is  SQC  a  day  for  each  day's  attendance. 


FORMS  173 

FORM  XIV 

If  after  defendant  pays  the  costs  as  terms  for  permission  to 
amend  his  answer,  the  plaintiff  finally  succeeds  in  the  action,  he 
is  entitled  to  tax -a  full  bill  as  set  forth  in  Form  IV,  except  such 
disbursements  which  he  has  already  charged  on  the  previous 
taxation. 

If  the  defendant  is  finally  successful  in  the  action,  he  is  entitled 
to  tax  a  full  bill  of  costs  as  set  forth  in  Form  V. 

FORM  XV 

Bill  to  be  Taxed  by  Defendant  on  the  Withdrawal  of  a  Juror 
to  Permit  Plaintiff  to  Amend  His  Complaint 

Court 


against 


Plaintiff 


Defendant 


Costs  of 


Costs 

ib.  Before  notice  of  trial $10 .  oo 

2.  After  notice  of  trial 15 .00 

4.  Trial  of  an  issue  of  fact 30 .  oo 

19.  Term  fee  (only  one  in  the  City  Court) 10 .  oo 

Disbursements 

33.  Affidavits  (i2«f)  and  acknowledgments  (25^) 

38.  Certified  copy  of  order  (if  any) 


i74  TAXATION  OF  COSTS 


54.  Witness  fees  (if  any)  ' 

— (        )  days  (  )  miles. 

STATE  OF  NEW  YORK 
COUNTY  OF 

the  Attorney  for  the in  the  above- 
entitled  action,  being  duly  sworn,  says  that  the  foregoing  disburse- 
ments have  been  made  or  may  be  necessarily  made  or  incurred  in 
said  action  and  are  reasonable  in  amount,  and  that  the  persons 
named  as  witnesses,  attended  as  such  witnesses  on  the  Trial  of 
said  action  the  number  of  days  set  opposite  their  names;  that 
said  persons  resided  the  number  of  miles  set  opposite  their 
names,  from  the  place  of 'said  trial;  and  each  of  said  persons,  as 
such  witness  as  aforesaid,  necessarily  traveled  the  number  of  miles 
so  set  opposite  his  name,  in  traveling  to,  and  the  same  distance 
in  returning  from  the  said  place  of  trial;  and  that  the  copies  of 
documents  or  papers  as  charged  herein  were  actually  and  nec- 
essarily obtained  for  use. 

Sworn  to  before  me,  this day 

of 191     . 

(Note.  "Notice  of  Adjustment"  to  be  found  in  Form  I.) 

FORM  XVI 

If  after  plaintiff  pays  the  costs  as  terms  for  permission  to  amend 
his  complaint,  the  defendant  finally  succeeds  in  the  action,  he  is 
entitled  to  tax  a  full  bill  of  costs  as  set  forth  in  Form  V,  except 
such  disbursements  which  have  already  been  charged  on  the 
previous  taxation. 

If  the  plaintiff  is  finally  successful  in  the  action,  he  is  entitled 
to  tax  a  full  bill  of  costs  as  set  forth  in  Form  IV. 

1  Mileage  allowed  is  8c  a  mile  going  one  way  and  only  once,  pro- 
vided witness  resides  3  miles  or  more  from  place  of  attendance.  Wit- 
ness fee  is  soc  a  day  for  each  day's  attendance. 


FORMS  175 

FORM  XVII 

Bill  of  Costs  to  be  Taxed  by  the  Successful  Party  upon  a  Re- 
trial of  an  Action  had  Pursuant  to  an  Order  of  the  Court 
granted  upon  Setting  Aside  a  Verdict  Rendered  by  a 
Jury 

Court 


against 


Plaintiff 


Defendant 


Costs  of 


Costs 

ia.  Before  notice  of  trial  *  (when  within  §420  of  Code,  $15)  $25.00 

2.  After  notice  of  trial 15. oo 

4.  Trial  of  an  issue  of  fact  (two  trials) 60 .  oo 

19.  Term  fees  (only  one  fee  in  the  City  Court) 10.00 

2 1 .  Costs  after  the  granting  of  and  before  a  new  trial .....  25 .  oo 

Disbursements 

30.  Clerk's  fee  (not  in  the  City  Court) i .  oo 

32.  Clerk's  fee  on  entering  judgment .50 

33.  Affidavits  (12^)  and  acknowledgments  (25^) 

34.  Serving  summons  and  complaint  (New  York,  Kings, 

Bronx,  Queens,  and  Richmond  counties)  *. . .  1-50 

35.  Satisfaction  piece  (25^)  and  certificate  (izfi .37 

36.  Transcript  of  judgment  (i2f5)  and  filing  (64) .18 

38.  Certified  copy  of  order  (if  any) 

1  Defendant  is  entitled  to  $10  only. 

2  Defendant  is  not  entitled  to  this  item. 


176  TAXATION  OF  COSTS 

40.  Jury  fees  l $    3.00 

42.  Sheriff's  fees  on  execution  ($1.75  and  ioj£  a  mile)  2.  . 

47.  Extract  from  the  minutes .10 

53.  Note  of  issue  l 3 . oo 

54.  Witness  fees.* 

— (        )  days        (  )  miles 

STATE  OF  NEW  YORK    1 

l  SS' 

COUNTY  OF  J 

the  attorney  for  the in  the  above- 
entitled  action,  being  duly  sworn,  says  that  the  foregoing  disburse- 
ments have  been  made  or  may  be  necessarily  made  or  incurred  in 
said  action  and  are  reasonable  in  amount,  and  that  the  persons 
named  as  witnesses,  attended  as  such  witnesses  on  the  Trial  of 
said  action  the  number  of  days  set  opposite  their  names;  that 
said  persons  resided  the  number  of  miles  set  opposite  their 
names,  from  the  place  of  said  trial;  and  each  of  said  persons,  as 
such  witness  as  aforesaid,  necessarily  traveled  the  number  of  miles 
so  set  opposite  his  name,  in  traveling  to,  and  the  same  distance 
in  returning  from  the  said  place  of  trial;  and  that  the  copies  of 
document  or  papers  as  charged  herein  were  actually  and  necessarily 
obtained  for  use. 

Sworn  to  before  me,  this day 

of 191 

(Note.  "Notice  of  Adjustment"  to  be  found  in  Form  I.) 

1  Defendant  is  not  entitled  to  these  items. 

2  In  the  counties  of  New  York,  Kings,  Bronx,  Queens,  and  Richmond 
only;  in  all  the  other  counties  only  62C  and  zoc.  a  mile. 

3  Fees  allowed  are  SDC  for  each  day's  attendance,  and  8c  a  mile  one 
way  only,  provided  the  witness  has  to  travel  three  miles  or  more. 


FORMS  177 

FORM  XVHI 

Bill  of  Costs  to  be  Taxed  by  the  Successful  Party  upon  the 
Re-trial  of  an  Action  Pursuant  to  an  Order  of  Reversal 
by  the  Appellate  Court,  Ordering  a  New  Trial  with 
Costs  to  Abide  the  Event 

Court 


against 


Plaintiff 


Defendant 


Costs  of 


Costs 

IE.  Before  notice  of  trial1  (when within  §420  of  Code, $15)  $25.00 

2.  After  notice  of  trial 15 .  oo 

4.  Trial  of  an  issue  of  fact  (two  trials) 60 .  oo 

16.  Making  artd  serving  a  case  on  appeal z 20 .  oo 

17.  Preparing  and  serving  amendments  to  a  case  3 20.00 

18.  Case  more  than  fifty  folios  2  (10  additional) 10.00 

19.  Term  fees  in  trial  court  (only  one  in  the  City  Court) .  10 .  oo 
19.  Term  fees  in  appellate  court 4 

21.  Costs  after  granting  of  and  before  new  trial 25. oo 

23.  Before  argument  (in  Appellate  Term  or  Appellate  Di- 
vision)    20 . oo 

23.  For  argument  (in  Appellate  Term  and  Appellate  Di- 
vision)    40 . oo 

1  Defendant  to  tax  $10  only. 

2  Not  to  be  taxed  by  respondent. 

3  Not  to  be  taxed  by  appellant. 

4  No  term  fees  in  Appellate  Term. 


178  TAXATION  OF  COSTS 

Disbursements 

30.  Clerk's  fees  (not  in  the  City  Court)  1 $i .  oo 

32.  Clerk's  fee  on  entering  judgment .50 

33.  Affidavits  (12^)  and  acknowledgments  (256) 

34.  Service  of  copy  summons  and  complaint  (New  York, 

Kings,  Bronx,  Queens,  and  Richmond  coun- 
ties) l i .  50 

35.  Satisfaction  piece  (25*!),  certificate  (12$ .37 

36.  Transcript  of  judgment  (12^)  and  filing  (6<?) .18 

38.  Certified  copy  of  order  (if  any) 

40.  Jury  fees  (two  juries)  l 6 .  oo 

42.  Sheriff's  fees  on  execution  ($1.75  and  10^  a  mile)  2 

47.  Extract  from  the  minutes .10 

48.  Paid  printing  cases  s 

49.  Paid  printing  points 

50.  Paid  copy  stenographer's  minutes 

53.  Note  of  issue  l 3 . oo 

54.  Witness  fees,  (50^  for  each  day,  8d  a  mile  going  one 

way)  4 • 

(         )  days         (  )  miles 

STATE  OF  NEW  YORK 

COUNTY  OF 

» 

the  attorney  for  the in  the  above- 
entitled  action,  being  duly  sworn,  says  that  the  foregoing  disburse- 
ments have  been  made  or  may  be  necessarily  made  or  incurred  in 
said  action  and  are  reasonable  in  amount,  and  that  the  persons 
named  as  witnesses,  attended  as  such  witnesses  on  the  Trial  of 
said  action  the  number  of  days  set  opposite  their  names;  that 

1  Not  to  be  taxed  by  defendant. 

2  In  the  counties  of  New  York,  Kings,  Bronx,  Queens,  and  Richmond 
only.    In  the  other  counties  only  62C  and  roc  a  mile. 

*Not  to  be  taxed  by  respondent. 

4  Mileage  allowed  is  8c  a  mile  going  one  way  and  only  once,  pro- 
vided witness  resides  3  miles  or  more  from  place  of  attendance.  Wit- 
ness fee  is  soc  for  each  day's  attendance. 


FORMS  179 

said  persons  resided  the  number  of  miles  set  opposite  their 
names,  from  the  place  of  said  trial;  and  each  of  said  persons,  as 
such  witness  as  aforesaid,  necessarily  traveled  the  number  of  miles 
so  set  opposite  his  name,  in  traveling  to,  and  the  same  distance 
in  returning  from  the  said  place  of  trial;  and  that  the  copies  of 
documents  or  papers  as  charged  herein  were  actually  and  nec- 
essarily obtained  for  use. 

Sworn  to  before  me,  this day 

of 191     . 

(Note.  "Notice  of  Adjustment"  to  be  found  in  Form  I.) 

FORM  XIX 

Bill  of  Costs  to  be  Taxed  on  the  Rendition  of  Judgment 
Absolute  by  the  Appellate  Division  in  an  Action  Brought 
in  the  City  Court,  Which  was  Reversed  and  New  Trial 
Ordered  by  Appellate  Term 

Court 


Plaintiff 


against 


Costs  of 


Costs 

la.  Before  notice  of  trial  1 $25  or  $15 .00 

2.  After  notice  of  trial 15.00 

4.  Trial  of  an  issue  of  fact 30 .  oo 

1  Defendant  to  tax  only  $10.00.   If  the  action  comes  within  §  420  of  the 
Code,  plaintiff  to  tax  only  $15.00. 


i8o  TAXATION  OF  COSTS 

16.  Making  and  serving  a  case  l $  20.00 

17.  Making  and  serving  amendments  to  a  case  2 20.00 

18.  Case  more  than  fifty  folios  l  (10  additional) 10.00 

19.  Term  fee  at  trial  term  (only  once  in  the  City  Court) ...  10.00 
19.  Term  fees  in  Appellate  Division  (if  any) 3 

21.  Proceedings  before  and  after  granting  new  trial 25.00 

23.  Appeal  to  Appellate  Term  before  argument 20.00 

23.  Appeal  to  Appellate  Term  for  argument 40.00 

23.  Appeal  to  Appellate  Division  before  argument 20.00 

23.  Appeal  to  Appellate  Division  for  argument 40.00 

Disbursements 

32.  Clerk's  fees  on  entering  judgment .50 

33.  Affidavits  (i2<0  and  acknowledgments  (25^) 

34.  Serving  copy  summons  and  complaint  (in  New  York, 

Kings,  Queens,  Richmond,  and  Bronx  coun- 
ties) 4 i .  50 

35.  Satisfaction  piece  (25^)  and  certificate  (121!) .37 

36.  Transcript  of  judgment  (12^)  and  filing  (6^) .18 

40.  Jury  f ee  4 3 .  oo 

42.  Sheriff's  fees  on  execution  ($1.75  and  10^  a  mile)  &.  . .  i  .85 

47.  Extract  from  the  minutes .10 

48.  Paid  printing  cases  • 

49.  Paid  printing  points 

50.  Paid  copy  of  stenographer's  minutes 7 

53.  Note  of  issue  4 3.00 

1  To  be  taxed  by  appellant  only. 

2  To  be  taxed  by  respondent  only. 

1  No  term  fees  in  the  Appellate  Term. 

4  To  be  taxed  by  plaintiff  only. 

*  In  New  York,  Kings,  Queens,  Bronx,  and  Richmond  counties  only; 
in  the  others  only  620  and  IDC  a  mile. 

•To  be  taxed  by  appellant  only. 

7  Neither  attorney's  summation  nor  excess  rate  is  taxable.  This  item 
cannot  be  taxed  when  the  appellant  offered  a  copy  of  his  minutes  to 
the  respondent  with  which  to  prepare  his  amendments  and  the  latter 
refused  to  accept  them. 


FORMS  181 

54.  Witness  fees,  50^  for  each  day's  attendance  and  8^ 
a  mile  one  way.1 

-  (        )  days  (  )  miles  ...... 

-  (        )  days  (  )  miles  ...... 


STATE  OF  NEW  YORK) 
_  |  ss: 

COUNTY  or  j 

................  the  Attorney    for  the  ........  in   the   above- 

entitled  action,  being  duly  sworn,  says  that  the  foregoing  disburse- 
ments have  been  made  or  may  be  necessarily  made  or  incurred  in 
said  action  and  are  reasonable  in  amount,  and  that  the  persons 
named  as  witnesses,  attended  as  such  witnesses  on  the  Trial  of 
said  action  the  number  of  days  set  opposite  their  names;  that 
said  persons  resided  the  number  of  miles  set  opposite  their 
names,  from  the  place  of  said  trial;  and  each  of  said  persons,  as 
such  witness  as  aforesaid,  necessarily  traveled  the  number  of  miles 
so  set  opposite  his  name,  in  traveling  to,  and  the  same  distance 
in  returning  from  the  said  place  of  trial;  and  that  the  copies  of 
documents  or  papers  as  charged  herein  were  actually  and  nec- 
essarily obtained  for  use. 

Sworn  to  before  me,  this  ........  day 

of  ............  191 

(Note.  "Notice  of  Adjustment"  to  be  found  in  Form  I.) 

1  Mileage  allowed  is  8c  a  mile  going  one  way  and  only  once,  pro- 
vided witness  resides  3  miles  or  more  from  place  of  attendance.  Wit- 
ness fee  is  SQC  a  day  for  each  day's  attendance. 


1 82  TAXATION  OF  COSTS 


FORM  XX 

Bill  of  Costs  to  be  Taxed  by  the  Successful  Party  on  Entry 
of  Final  Judgment  Upon  an  Interlocutory  Judgment 
Overruling  or  Sustaining  a  Demurrer  to  a  Pleading 

Court 


against 


Plaintiff 


Defendant 


Costs  of 


Costs 

ia.  Before  notice  of  trial  l $25  or  $15 .00 

2.  After  notice  of  trial 15 .  oo 

5.  Trial  of  an  issue  of  law 20.00 

Disbursements 

32.  Clerk's  fee  on  entering  judgment .50 

33.  Affidavits  (12^)  and  acknowledgments  (25^) 

34.  Service  of  copy  summons  and  complaint  (in  New 

York,  Kings,  Queens,  Bronx,  and  Richmond 
counties)  2 i .  50 

35.  Satisfaction  piece  (25^),  Certificate  (12^) .37 

36.  Transcript  of  judgment  (i2«5)  and  filing  (6^) .18 

42.  Sheriff's  fees  on  execution  ($.1.75  and  io^a  mile)  3.  .  .  . 

1  Defendant  to  tax  $10  only.    If  action  comes  within  §  420  of  the  Code, 
plaintiff  to  tax  only  $15. 

2  Not  to  be  taxed  by  defendant.    In  other  counties  only  Si  .00. 

1  In  New  York,  Queens,  Kings,  Bronx,  and  Richmond  counties  only. 
In  other  counties  only  62C  and  ice  a  mile. 


FORMS  183 

STATE  OF  NEW  YORK 
COUNTY  OF 


ss: 


the  attorney  for  the in  the  above  en- 
titled action,  being  duly  sworn,  says  that  the  foregoing  disburse- 
ments have  been  made  in  said  action  or  may  be  necessarily  made 
or  incurred  therein  and  that  they  are  reasonable  in  amount. 

-Sworn  to  before  me  this 

day  of ....  19    . 

(Note.  "Notice  of  Adjustment"  to  be  found  in  Form  I.) 


INDEX 

References  are  to  sections 

A 

Abatement  of  Action: 

No  costs  allowable  on  abatement  of  action 25 

Abide  the  Event.    See  "With  Costs  to  Abide  the  Event." 

Actions  at  Law: 

Costs  are  statutory 2 

Court  cannot  withhold  them 2 

Effect  of  "without  costs" 2 

Effect  of  granting  motion  "with  costs" 2 

Actions  in  Equity: 

Costs  in  discretion  of  court 3 

Costs  limited  by  sec.  3230  of  Code 3 

When  judgment  demands  sum  of  money  only 3 

Actions  in  Tort  or  Contract : 

When  doubtful  as  to  whether  action  is  in  tort  or  contract     10 

Actions: 

Several  actions  tried  as  one 21 

Additional  Allowance  to  Plaintiff,  etc. : 

Statutory  provisions 177 

Meaning  of  "subject-matter" 178 

How  value  of  property  is  fixed 178 

Limitation  of  allowance  to  $2,000 179 

Additional  Allowance.     See  "Trial  Lasting  More  than  Two 
Days." 

185 


1 86  INDEX 

References  are  to  sections 
Additional  Defendants.    See  "Summons." 

Adjournment  of  Taxation  of  Costs.    See  "Clerk  to  Tax 
Costs." 

Adjournments: 

Effect  on  term  fees 52 

Administrators.    See  "  Executors." 

Adverse  Party.    See  "  Witness,"  "  Depositions  and  Inter- 
rogatories" 

After  Notice  of  Trial: 

Item  allowable  once  only 29 

When  more  than  one  charge  allowed 30 

When  charge  not  allowed 31 

Effect  of  failure  to  file  note  of  issue 32 

Effect  of  discontinuance  of  action 60 

Allowance  on  demurrers 71 

Affidavit: 

Affidavit  of  disbursements  necessary 216 

Affidavit  as  to  attendance  of  witnesses 237 

Affidavit  as  to  mileage  travelled 243 

See  also  "Disbursements,"  "Witness"  and  "Mileage." 

Affirmance : 

Costs  in  judgment  of  affirmance no 

Of  interlocutory  judgment 74 

Affirmative  Judgment: 

When  affirmative  judgment  must  be  obtained 163, 164 


INDEX  187 
References  are  to  sections 

After  the  Granting  of  and  before  New  Trial: 

Allowance  by  statute 83 

Item  taxable  more  than  once oo 

When  verdict  is  set  aside  and  new  trial  ordered 84 

When  verdict  set  aside  because  of  misconduct  of  jury  .  .  85 

Reversal  of  judgment  by  Appellate  Term 86 

Effect  of  opening  inquest 87 

"      of  disagreement  of  jury 88 

"      of  restoring  case  to  day  calendar 89 

Allowance.    See  "Additional  Allowance  to  Plaintiff,"  etc. 

Amendment  of  Pleadings : 

Effect  on  term  fees 51 

Costs  accruing  before  amendment  not  taxable  on  final 

judgment 100 

Effect  dependent  on  the  nature  of  amendment 100 

Amount  of  Recovery.    See  "Recovery,"  "Appeal." 

Appearance  of  Party : 

Party  must  appear  generally  in  person  or  by  attorney  . .  i 

Special  appearance  insufficient i 

Voluntary  appearance  of  defendant 154,  155,  2igb 

Effect  of  appearance  of  party  in  appellate  court -112 

Appeals : 

Statutory  provisions 101 

Effect  of  failure  to  perfect  case  on  appeal 102 

More  than  one  appeal  in  same  case 103 

Simultaneous  appeals  from  judgment  and  order 104 

When  costs  of  trial  need  not  be  relaxed 105 

Appeal  costs  taxed  on  entry  of  final  judgment 106 

Allowance  where  recovery  is  less  than  $50 107 

Dismissal  of  appeal 108,  133 

Motion  costs  need  not  be  taxed 109 


i88  INDEX 

References  are  to  sections 

Appeals — Continued 

Costs  in  judgment  of  affirmance no 

Costs  of  appeal  to  be  set  off in 

Effect  of  appearance  of  party  in  appellate  court 112 

Objection  to  appeal  costs — how  taken 113 

Appeal  from  order  made  at  close  of  trial no* 

Appeal  from  order  to  set  verdict  aside ii<> 

' '    granting  new  trial  on  newly  discovered 

evidence 1 20 

When  appeal  costs  are  same  as  motion  costs 122 

Appeal  from  order  only 121 

No  term  fee  on  appeal  from  order 54 

When  term  fees  are  taxable 54 

Successful  party  entitled  to  appeal  costs 95 

Several  appeals  argued  as  one 21 

On  reargument  of  appeal 1 24 

Case  on  appeal  to  be  taxed  by  appellant  only 132 

Appeal  costs  not  dependent  on  amount  of  recovery 156 

Costs  of  appeal  in  pauper  actions 211 

Cost  on  appeal  against  executors,  etc 206 

Effect  of  appeal  by  several  defendants  on  same  papers.  .  232 

Appeal  Costs: 

Objection  how  taken 113 

When  demurrer  heard  as  a  contested  motion 117 

Only  one  bill  against  several  respondents 118 

See  "Appeals." 

Appellant: 

Case  on  appeal  to  be  taxed  by  appellant  only 132 

See  "Appeals." 

Appellate  Term: 

No  term  fees  allowed 53 

Order  of  Appellate  Term  to  be  made  order  of  court  below .  i38a 


INDEX  189 

References  are  to  sections 

Argument : 

Costs  on  argument 101 

Submission  of  papers  same  as  argument 125 

Several  appeals  argued  as  one 21 

See  "Appeals." 

Arrest  and  Imprisonment: 

Issuance  of  execution  against  person  for  collection  of  costs  256 

Execution  may  be  issued  against  either  party 256 

In  tort  actions 256 

Personal  injuries 256 

Assault 256 

Against  guardian  ad  litem 256 

Assault,  Slander,  etc.: 

Allowance  of  costs 142 

Attachment 

warrant  of — Poundage  and  fee,  how  collected,  when  writ 
is  vacated   . page  146 

Attendance : 

Referee's  fees  for  every  day's  attendance 195 

Of  witness.    See  "Witness,"  "Referee's  Fees." 
Attorney : 

No  allowance  for  service  of  papers  on  attorney 234 

Witness  fee  for.    See  "Witness." 

Attorney's  Lien  for  Costs: 
See  "Collection  of  Costs." 

B 

Battery.    See  "  Assault." 

Before  Notice  of  Trial: 

Costs  allowed 26 

When  action  comes  with  §  420,  C.  C.  P 27 

Not  taxable  on  entry  of  interlocutory  judgment 28,  74 

Effect  of  discontinuance  of  action .  .  60 


1 90  INDEX 

References  are  to  sections 

BUI  of  Costs: 

Bill  of  costs  must  be  served  together  with  notice  of 

taxation 4 

Must  be  examined  by  clerk 7 

Items  must  be  legal 7 

Not  necessary  that  adversary  be  present  on  taxation ...  7 

Bond  and  Undertaking: 

Premiums  paid  not  taxable 221 

On  replevying  chattels 221 

Bond  on  appeal 221 

For  security  of  costs 221 

Bronx  County 

County  clerk's  fees page  148 

C 

Case  on  Appeal : 

Effect  of  failure  to  perfect 102 

What  a  case  consists  of 93 

Not  taxable  in  Court  of  Appeals 131 

Taxable  by  appellant  only 132 

Effect  of  failure  to  make  and  serve  a  case 108 

Certiorari  Proceedings : 

How  awarded 134 

As  to  allowance  of  increased  costs 183 

Certificate: 

In  actions  involving  an  interest  in  real  property 139 

Charges : 

Transcript  of  judge's  charge  is  taxable 214 

City  Court  of  the  City  of  New  York: 

Notice  of  taxation  of  costs 4 

Term  fee 45-49 

Costs  on  appeal  from  interlocutory  judgment 114 

When  appeal  costs  may  be  taxed i38a 

Order  of  appellate  court  to  be  made  order  of  City  Court. .  i38a 


INDEX  191 
References  are  to  sections 

Clerk  to  Tax  Costs : 

Upon  application  of  party 4 

Direction  of  court 4 

There  must  be  a  verdict,  report  of  referee,  etc 5 

Clerk  must  examine  bill  carefully 7 

Adversary  need  not  be  present  at  taxation 7 

Clerk  may  adjourn  taxation 8 

Clerk  not  to  dismiss  taxation 1 1 

"        "    "  retax  in  absence  of  both  parties u 

Clerk  must  tax  bill  of  costs  of  several  defendants  on  pres- 
entation    17 

When  clerk's  taxation  not  disturbed 218 

Code.    See  "Section." 

Co-defendant.    See  "  Witness." 

Collection  of  Costs : 

Execution  against  property 250 

Supplementary  proceedings 251 

Motion  cost  not  collectible  either  by  execution  against 

real  property  or  supplementary  proceeding 252 

Interlocutory  costs 252 

Costs  on  demurrer 252 

"     on  appeal  from  order  of  Special  Term 252 

Alimony  and  counsel  fee 252 

Contempt 253 

Matrimonial  actions 254 

Attorney's  lien  for  costs 255 

Execution  against  the  person 256 

Mandamus 257 

Commissioners : 

Fees  of  Commissioner  taxable 214 

Confession  of  Judgment: 

Allowances 190 


I92  INDEX 

References  are  to  sections 

Consolidation  of  Actions : 

Effect  of  consolidation  of  actions 65 

Contempt : 

On  failure  to  pay  costs  by  attorney 253 

Power  to  punish  on  failure  to  pay  costs 253 

Contested   Motion.     See  "Appeal  Costs,"   "Demurrer," 
"Motion  Costs." 

Co-partner : 

Ability  of  one  partner  to  offer  judgment  against  a  co- 
partnership     188 

Costs  are  Statutory  in  Law  Actions : 

Court  has  no  power  to  grant  or  withhold 2 

When  "without  costs"  ineffective 2 

When   discretionary.      See   "Demurrer,"    "Actions    in 
Equity,"  "Motion  Costs." 

Costs  belong  to  Party: 

Costs  awarded  belong  to  party 9 

Costs  Previously  Paid  as  Terms : 

Effect  of  payment  of  costs  imposed  as  terms 96 

When  costs  paid  as  terms  cannot  be  taxed  again 96 

When  items  of  costs  allowed  to  be  taxed  again 97 

When  terms  allowed  is  amount  equal  to  costs 98 

Costs  on  Appeal : 

Objection  to,  how  taken 1 13 

From  interlocutory  judgment  in  City  Court 1 14 

See  "appeal" 

Counterclaim: 

Effect  of  counterclaim  interposed  by  defendant 164 

See  "Offer  of  Judgment." 


INDEX  193 
References  are  to  sections 
Court  of  Appeals : 

Costs  as  awarded  in  Court  of  Appeals 129 

Costs  as  used  in  undertakings  on  appeal 130 

Costs  for  making  and  serving  a  case 131 

What  costs  are  taxable 131 

Criminal  Conversation:    See  "  Assault." 

D 

Default: 

Payment  of  costs  on  opening  default 99 

Defendant: 

When  defendant  is  entitled  to  costs 157,  158,  161 

Statutory  provisions 158 

When  one  of  several  defendants  obtains  judgment 159 

When  attorney  for  defendant  is  a  public  official 160 

Allowances  to  plaintiff  and  defendant 162 

When  defendant  not  entitled  to  costs 163 

Effect  of  counterclaim  by  defendant 164 

Entitled  to  costs  on  offer  of  judgment 188 

When  defendant  entitled  to  increased  costs.     See  "  In- 
creased Costs  to  Defendant." 

Additional  costs  for  additional  defendants  served 2iga 

Effect  of  voluntary  appearance  as  to  additional  costs .  .  .  2igb 

Demurrer  and  Interlocutory  Judgment: 

Allowance  for  trial  of  issue  of  law 67 

When  discretionary  with  court 67 

When  entitled  to  costs 68 

Motion  to  overrule  demurrer 68 

When  nominal  damages  demanded  in  complaint 69 

When  demurrer  brought  on  as  a  contested  motion  .  .  .70,  117 

When  demurrer  tried  as  issue  of  law 71 

On  entry  of  interlocutory  judgment 71 


194  INDEX 

References  are  to  sections 

Demurrer  and  Interlocutory  Judgment — Continued 

When  demurrer  sustained  or  overruled  in  whole 72 

When  there  are  several  defendants  not  united  in  interest  72 

What  fees  and  disbursements  not  taxable 72 

Effect  of  demurrer  as  to  one  of  several  defenses  or  counter- 
claims    73 

When  full  costs  are  taxable 73,  76 

Items  taxable  on  entry  of  interlocutory  judgment 74 

On  affirmance  of  interlocutory  judgment 74 

Disbursements  allowed 75 

Costs  to  be  included  in  final  judgment 77 

Interlocutory  judgment  overruling  demurrer,  reversed  . .  115 

on  demurrer,  affirmed 116 

Collection  of  demurrer  costs.    See  "Collection  of  Costs." 

Depositions  and  Interrogatories: 

Drawing  interrogatories,  statutory  provisions 165 

Interrogatories  not  served 165 

Only  one  fee  taxable 166 

When  more  than  one  fee  taxable 167 

Depositions,  statutory  provisions 168 

Fee  follows  on  issuance  of  Commission 169 

Deposition  by  stipulation 170 

Allowance  to  party  entitled  to  general  costs 171 

Only  one  fee  where  one  order  is  issued 172 

Where  several  parties  obtain  orders 173 

Where  examination  is  waived 174 

Where  order  is  obtained  by  adverse  party 175 

When  no  allowance  is  made 176 

Direction  of  Court.    See  "  Minutes." 

Disagreement  of  Jury : 

Effect  on  trial  fee 38 

Effect  as  to  statutory  allowance  when  new  trial  is  ordered  88 


INDEX  195 
References  are  to  sections 

Disbursements : 

Statutory  provisions 214 

Item  included 214 

Authority  to  tax  disbursements 215 

When  disbursement  may  be  taxed 215 

Affidavit  of  disbursements  must  accompany  bill 216 

Disbursements  must  be  reasonable 216 

An  award  of  costs  includes  disbursements 217 

When  clerk's  taxation  thereof  not  disturbed 218 

Fees  for  service  of  subpoena  not  taxable 220 

Fees  for  official  searches 222 

Stenographer's  fees 223 

minutes 224 

Allowance  not  included  in  motion  costs 249 

Effect  of  discontinuance  of  action 61 

What  disbursement  not  allowed  or  entry  of  interlocutory 

judgment 72,75 

When  disbursement  must  be  expressly  awarded 79 

Where  there  is  more  than  one  appeal  in  same  case 103 

Costs  include  disbursement 123,  146,  217 

What  is  a  necessary  disbursement 223 

Discontinuance  of  Action : 

Allowance  of  costs  not  discretionary 59 

Entitled  to  costs  before  and  after  notice  of  trial 60 

No  trial  fee  nor  disbursements 35,  61 

When  trial  fee  may  be  allowed 62 

When  no  term  fee  allowed 50,  63 

When  no  costs  imposed 64 

No  judgment  for  costs  to  be  entered 66 

Discretion  of  Court.     See  "Actions  in  Equity;"  "Actions 
at  Law." 

Dismissal  of  Action: 

Trial  fee  allowed 34 

See  "Dismissal  of  Complaint." 


196  INDEX 

References  are  to  sections 

Dismissal  of  Appeal : 

For  failure  to  make  and  serve  a  case 108 

Costs  on  dismissal  of  appeal 133 

Dismissal  of  Complaint: 

Costs  are  statutory 55 

Trial  fee  allowed 56 

When  several  defendants  move  to  dismiss 57 

Effect  of  dismissal  as  to  one  of  several  defendants.  .  . 58,  159 

Dismissal  of  Taxation: 

Authority  of  clerk  to  dismiss  taxation 1 1 

When  dismissed,  proper  course  is  to  review 12 

Disqualification  of  Judge : 

Reargument  because  of 126 

Docketing : 

Fees  for  docketing  and  entry  of  judgment 214 

,  Document: 

Same  document  used  in  several  actions *,.   233 

£ 

Entry  of  Judgment: 

Fees  for  entry  of  judgment  proper  item  of  disbursements  214 
Right  to  review  taxation  waived 14 

Equity.    See  "Actions  in  Equity." 

Equitable  Actions: 

Costs  discretionary 3 

Costs  limited  by  §  3230,  C.  C.  P 3 

When  judgment  demands  sum  of  money  only 3 

Event.    See  "With  Costs  to  Abide  the  Event." 


INDEX  197 

References  are  to  sections 

Excess  Rate :  « 

For  minutes  not  taxable 229 

Execution : 

Execution  against  property 250 

"       the  person 256 

Executors  and  Administrators : 

Statutory  provisions 201 

When  not  liable  for  costs 201 

Entitled  to  complete  trial  before  liability  for  costs  at- 
taches     202 

Effect  of  unreasonably  resisting  a  claim 203 

When  certificate  of  judge  necessary 204 

When  liable  for  costs 203,  205 

Liability  for  appeal  costs 206 

Exemption  from  costs  limited 2o6a 

Exemption  from  Costs.     See  "  Executors  and  Administrators." 

Expense : 

Proof  must  be  submitted 231 

Expert  Testimony: 

What  allowance  therefor  may  be  made 242 

F 
False  Imprisonment.     See  Assault. 

Fees: 

Of  referee 191, 192 

Effect  of  stipulation  as  to  referee 193 

When  several  actions  tried  together 194 

Days  of  attendance 195 

Preparation  of  report 196 

When  no  fee  allowed 197 

Stipulation  of  attorneys  as  to 198 


198  INDEX 

References  are  to  sections 

Fees — Continued 

Stipulation  as  to  stenographer's  fees 227 

Also  see  "Stenographer's  Fees,"  "Commissioners,"  "  Dep- 
ositions and  Interrogatories,"  "Sheriff,"  "Dis- 
bursements." 

Final  Judgment: 

Costs  accruing  before  amendment  not  taxable 100 

See  "Appeal,"  "Demurrer  and  Interlocutor)'  Judgment." 

Finally  Successful: 

Party  finally  successful  entitled  to  costs 106, 138 

Fine  or  Penalty : 

When  people  of  state  are  a  party '. 142 

Foreclosure : 

Allowances  on,  upon  offer  of  judgment iSyb,  189 

Fifty  Dollars.    See  "Less  than  $50." 

Forma  Pauperis : 

Statutory  provisions 207 

Liability  of  party  suing  as  a  poor  person 207 

Order  to  be  presented  on  taxation  or  served  on  adverse 

party 208 

When  costs  may  be  imposed 209,  210 

Costs  accruing  prior  to  granting  of  order 210 

Appellate  court  costs 211 

Effect  of  unsuccessful  appeal 212 

When  recovery  is  less  than  $50 213 

G 

General  Costs: 

Prevailing  party  entitled  to 164 

Who  is  the  prevailing  party 164 

Allowance  for  issuance  of  commission  follows  general  costs  171 


INDEX  199 
References  are  to  sections 
Guardian  ad  Litem: 

Liability  to  execution  against  the  person 256 

I 
Increased  Costs  to  Defendant: 

Statutory  provisions .  . 180 

Allowance  when  action  is  against  sheriff 181 

Allowance  when  action  is  against  policeman 181 

No  allowance  when  action  is  on  bond  of  officer 182 

Writ  of  certiorari  not  within  section 183 

Allowance  includes  cost  on  appeal 184 

Inquest: 

Trial  fee  allowed  on  inquest 40 

Effect  of  opening  inquest 87 

Interest : 

Interest  to  be  computed  by  clerk 24 

Amount  to  be  inserted  in  judgment 24 

Interest  is  not  properly  included  as  an  item  in  bill  of  costs     24 

Interlocutory  Costs.    See  " Collection  of  Costs,"  "Interlocutory 
Judgment." 

Interlocutory  Judgment: 

Costs  before  notice  of  trial  not  taxable 28 

Costs  on  appeal  from,  in  City  Court 114 

Costs  overruling  demurrer,  reversed 115 

"     on  demurrer,  affirmed 1 16 

See  "Demurrer  and  Interlocutory  Judgment." 

Interrogatories.    See  "  Depositions  and  Interrogatories." 


200  INDEX 

References  are  to  sections 

Issuance  of  Commission.    See  "Depositions  and  Interrog- 
atories." 

Items  of  Disbursements.     See  "Disbursements,"  "Bill  of 
Costs,"  "Demurrer  and  Interlocutory  Judgment." 

J 
Judgment: 

Judgment  incomplete  without  costs 19 

Judgment  for  costs  on  discontinuance  not  to  be  entered .     66 
Effect  of  appeal  from  judgment  and  order  at  same  time  104 

Costs  in  all  courts  on  entry  of  final  judgment 106 

What  costs  are  proper  in  judgment  of  affirmance no 

Plaintiff  to  obtain  affirmative  judgment  in  action  involv- 
ing real  property 141 

Fee  for  entering  judgment 214 

On  affirmance  of  interlocutory  judgment 74 

See  "Offer  of  Judgment,"  "Confession  of  Judgment," 
"Affirmative  Judgment." 

Judge: 

Reargument  on  disqualification  of  judge 1 26 

Jurisdiction: 

Jurisdiction  of  court  to  try  title  to  real  property 140 

Jury  Fees: 

Proper  item  of  disbursements 214 

K 

Kings  County 

Fees  of  Kings  County  clerk page  149 

L 
Laches.    See  "Motion  to  Review  Taxation." 

Law.    See  "Actions  at  Law." 


INDEX  201 

References  are  to  sections 

Less  than  $60. 

Effect  when  recovery  is  less  than  $50 149,  157,  213 

When  right  to  costs  is  not  dependent  on  amount  of  re- 
covery    138 

In  replevin  actions 144 

Costs  allowed 145 

"     disallowed 146 

Effect  on  appeal  costs  when  recovery  is  less  than  $50 ....    107 

Acceptance  of  offer  of  judgment  for  less  than  $50 187 

See  also  "Recovery." 

Less     than     $250.       See     "Recovery;"     "Defendant;" 
"Sec.  3228,  sub.  4  and  5." 

Less     than     $600.        See     "Recovery;"     "Defendant;" 
"Sec.  3228,  sub.  4  and  5." 

Less    than    $1,000.      See    "Recovery;"    "Defendant;" 
"Sec.  3228,  sub.  4  and  5." 

Libel.    See  "Assault." 

Lien: 

Attorney's  lien  for  costs 255 

Superior  to  right  of  set-off  by  parties ......;....   255 

Limitation  of  Allowance : 

When  allowance  limited  to  $2,000 179 

Limitation  of  Recovery.     See  "Recovery." 

*  M 

Making  and  Serving  a  Case : 

Not  taxable  in  Court  of  Appeals 131 

Taxable  by  appellant  only 132 

Malicious  Prosecution.     See  "Assault,"  etc. 


202  INDEX 

References  are  to  sections 

Mandamus : 

Municipality  may  be  compelled  by  mandamus  to  pay 

costs 257 

When  mandamus  cannot  be  invoked 257 

Matrimonial  Actions : 

Method  of  collecting  allowance 254 

Measurements.     See  "Expert  Testimony." 
Mechanics'  Liens.     See  "Foreclosure." 

Mileage : 

Affidavit  of  mileage  necessary 243 

For  witnesses,  once  and  only  one  way 244 

Witness  must  travel  three  miles  or  more 244 

Computed  from  place  of  actual  residence 245 

Foreign  witness 246 

Fees  must  appear  to  have  been  paid 247 

When  testimony  taken  at  residence  of  witness 248 

Allowance  on  service  of  summons 219 

Allowances  made  to  sheriff.    See  "Sheriff." 

Minutes : 

Stenographer's  minutes 224 

Effect  of  offer  of  copy  of  minutes  by  appellant  to  respon- 
dent   224 

Effect  of  refusal  to  accept 224 

Ordered  in  course  of  trial 224 

When  used  on  another  trial 225 

When  procured  by  direction  of  court 226 

Excess  rate  or  for  summation  not  taxable 229 

Misconduct  of  Jury.     See  "After  Granting  of  and  before 
New  Trial." 

Mistrial: 

Effect  on  trial  fee  when  caused  by  withdrawal  of  juror.  .36,  37 


INDEX  203 

References  are  to  sections 
Money  only.    See  "Recovery." 

More  Favorable* Recovery.    "See  Offer  of  Judgment." 

More  than  Two  Days.    See  "Trial  Lasting  more  than  Two 
Days." 

Motion  Costs: 

May  be  allowed  or  disallowed  in  discretion  of  court. . .  .2,  78 

May  be  allowed  to  abide  the  event 78 

Cannot  exceed  $10  and  disbursements 2,  78 

When  costs  may  exceed  that  amount 78 

Meaning  of  "with  costs"  when  granted  on  motion 79 

Disbursements  must  be  expressly  allowed 79 

Effect  of  motion  for  new  trial  made  at  close  of  trial  ....   119 

Disbursements  not  included  in  motion  costs 249 

Motion  costs  of  appeal  not  to  be  taxed 109, 127 

When  costs  on  appeal  same  as  motion  costs 122 

On  appeal  from  motion  for  new  trial  on  newly  discovered 

evidence 104 

Demurrer  heard  as  a  contested  motion 117 

Motion  to  overrule  demurrer 68,  70 

How  collectible 252 

Motion  to  Review  Taxation : 

To  be  made  on  papers  before  clerk  on  taxation 14 

Statement  of  counsel  not  made  before  clerk  on  taxation 

cannot  be  considered 14 

When  question  of  law  is  raised 14 

Laches 14 

Entry  of  judgment  waives  right  to  review 14 

N 
Necessary  Disbursements.    See  "Disbursements." 

Newly  Discovered  Evidence.     See  "New  Trial  upon  Newly 
Discovered  Evidence." 


204  INDEX 

References  are  to  sections 
New  Trial  upon  Newly  Discovered  Evidence: 

Costs  allowed  same  as  on  appeal _ 91 

Motion  is  based  upon  a  case 91,  92 

What  a  case  consists  of 93 

Costs  allowed,  same  as  on  appeal 91 

Also  entitled  to  costs  on  appeal  from  judgment 94 

New  Trial: 

On  appeal  from  order  granting  or  denying  motion  for  a 

new  trial 119 

Appeal  from  order  granting  a  new  trial  on  newly  discov- 
ered evidence 120 

See  "After  the  Granting  of  and  before  a  New  Trial." 

Nominal  Damages : 

On  demurrer 69 

Note  of  Issue : 

Effect  on  term  fee  when  filed  by  adversary 48 

Effect  of  failure  to  file 32 

Notice : 

Notice  of  taxation  to  be  given  to  adverse  party 4 

Number  of  days'  notice 4 

Number  of  days'  notice  in  City  Court 4 

Notice  of  relaxation  to  be  given  immediately 13 

Effect  of  failure  to  give  notice  of  relaxation 13 

Bill  of  costs  to  accompany  service  of  notice  of  taxation  4 

Notice   of  Trial.     See  "Before  Notice  of  Trial,"   "After 
Notice  of  Trial." 

Costs  before  notice  of  trial 26 

Action  included  in  §  420,  C.  C.  P 27 

Costs  after  notice  of  trial 29 

When  one  charge  is  allowed 29 

When  more  than  one  is  allowed 30 


INDEX  205 
References  are  to  sections 

Effect  of  return  of  notice  of  trial 31 

Effect  of  failure  to  file  note  of  issue 32 

Effect  on  term  fee  when  filed  by  adversary 48 


O 

Offer  of  Judgment : 

Statutory  provisions 185 

Effect  of  plaintiff's  acceptance  of  offer i36 

Offer  must  be  unqualified 186 

When  offer  must  be  made i86a 

Withdrawal  of  offer i86b 

Effect  of  recovery  by  plaintiff  in  excess  of  offer 187 

What  is  meant  by  "in  excess  of  offer" 187 

What  is  a  "more  favorable"  recovery i87a,  188 

When  counterclaim  is  interposed •••••. I^7a- 

Effect  of  acceptance  of  offer  less  than  $50 187 

When  defendant  entitled  to  costs 188 

When  offer  of  defendant  is  insufficient 188 

When  recovery  is  reduced  to  less  than  offer 189 

Actions  in  foreclosure  proceedings i87b,  189 

When  offer  of  judgment  is  not  binding  on  other  parties .    188 

Officers  of  Corporation. 

Witness  fees.    See  "  Witness." 


Official: 

When  attorney  is  a  public  official 160 

Disbursements  for  official  searches  allowed 222 

See  "Increased  Costs  to  Defendant." 

Opinions : 

Fees  for  copies  of  opinions 214 


206  INDEX 

References  are  to  sections 
Order: 

Appeal  from  order  at  close  of  trial 119 

On  appeal  from  order  granting  a  new  trial  on  newly  dis- 
covered evidence 120,  121 

Appeal  from  order  only 121 

Costs  on  appeal  from  order  same  as  motion  costs 122 

Final  order  in  an  action  or  proceeding 80,  81,  82 

Order  of  appellate  court  must  be  made  order  of  lower 

court  before  costs  may  be  taxed i38a 

Order  for  deposition.    See  "Deposition." 

No  term  fee  on  appeal  from  order 54 

P 

Partner.    See  "Co-partner." 

Partial  Recovery.    See  "Recovery." 

Party: 

Costs  belong  to  party 9- 

Witness  fee  for  party  in  tfe  action.     See  "Witness," 
"Appearance  of  Party." 

Pauper.    See  "Forma  Pauperis." 

Payment  of  Costs  as  Terms.    See  "Costs  Previously  Paid 
as  Terms." 

Penalty.    See  "Fine." 

Perfect  Case  on  Appeal.    See  "Appeal." 

Period  of  Trial.    See  "Trial  Lasting  more  than  Two  Days." 

Plans.    See  "Expert  Testimony." 

Pleadings.    See  "Amendment  of  Pleadings." 


INDEX  207 

References  are  to  sections 
Policemen.    See  "Increased  Costs  to  Defendant." 

Poor  Person.    See  "Forma  Pauperis." 

Premiums  on  Bond  or  Undertaking.    See  "Bond." 

Prevailing  Party  in  an  Action : 

Meaning  thereof 164 

When  general  costs  follow 164 

Printing: 

'  Reasonable  expenses  for  printing  taxable 214 

Referee's  report 228 

Allowance  on  an  appeal  from  order 230 

When  there  are  several  defendants 231 

Proceedings  before  and  after  Granting  a  New  Trial.    See 

"After  the  Granting  of  and  Before  New  Trial." 

Proof  of  Expense.    See  "Expense." 

Public  Official.     See  "Official,"  "Increased  Cost  of  Defend- 
ant," "Defendant." 

Publication: 

Legal  fee  for  publication  is  taxable 214 

R 

Real  Property: 

Right  to  costs  not  limited  to  amount  of  recovery 139 

Title  of  property  must  be  in  question 140 

Unnecessary  allegation  as  to  real  property  insufficient  . .  140 

Jurisdiction  of  court  to  try  questions  of  title 140 

Where  action  is  united  with  a  tort  action 140 

Plaintiff  must  obtain  affirmative  judgment 141 

When  no  execution  against  real  property  can  be  had  ...  252 


208  INDEX 

References  are  to  sections 

Reargument: 

On  reargument  of  appeal 1 24 

On  disqualification  of  judge 126 

Motion  costs  for  reargument  of  appeal  not  to  be  taxed. .  127 

Reargument  when  referred 128 

Recovery : 

Effect  on  appeal  costs  when  recovery  less  than  $50 107 

Party  finally  recovering  judgment  entitled  to  costs 138 

When  right  to  costs  does  not  depend  on  amount  of  recov- 
ery   139 

In  replevin  actions 144 

Recovery  must  be  $50  or  more  to  entitle  plaintiff  to  costs 

in  actions  for  a  sum  of  money  only 148 

When  presumed  to  be  for  a  sum  of  money  only 148 

When  recovery  is  less  than  $50 149 

When  recovery  is  within  §  3228,  sub.  5,  C.  C.  P 150 

Allowance  dependent  on  place  of  service  and  trial  .  .  151,  152 

Effect  of  recovery  of  less  than  $250 153 

Has  no  application  to  appeal  costs 1 56 

Partial  recovery  by  both  parties  in  suit  of  several  causes 

of  action 161 

Referees : 

Must  file  report  as  prescribed 199 

Report  must  be  delivered  or  filed 199 

Misconduct  of 200 

Referee's  Fees: 

Statutory  provisions 191 

Fees  may  be  stipulated  in  writing 191, 193 

Fees  allowed  by  law 191, 192 

Effect  of  stipulation  as  to  fees 193 

When  several  actions  tried  together 194 

Fee  for  every  day  of  attendance 195 

Allowance  for  preparation  of  report 196 

When  no  fee  will  be  allowed 197 

Attorneys  may  stipulate  as  to  fees 198 


INDEX  209 
References  are  to  sections 

Reference : 

Effect  as  to  the  allowance  of  a  trial  fee 41 

When  reference  is  cancelled : 4ib 

Allowance  same  as  in  any  other  action 157 

Stenographer's  fees 228 

Replevin: 

Statutory  provisions 143 

Plaintiff  must  be  entitled  to  chattel 143, 144 

Allowance  dependent  on  amount  of  recovery  . .  144,  145,  147 

Costs  allowed 145 

Costs  disallowed 146 

Costs  includes  disbursements 146 

Report  of  Referee : 

Fee  for  preparation  of  report  of  referee 196 

Must  be  filed  by  referee  as  prescribed 199 

Effect  of  failure  to  file  report 199 

Printing  of  report 214,  228 

Residence : 

Testimony  taken  at  residence  of  witness 248 

Resisting  Claim.    See  "Executors  and  Administrators." 

Respondents. 

When  only  one  bill  allowed  to  several  respondents 118 

Restoring  Case.    See  "After  Granting  of  and  Before  New 
Trial" 

Relaxation: 

Notice  of  relaxation  to  be  immediately  given 13 

Failure  to  give  notice  of  relaxation 13 

Parties  appearing  are  entitled  to  notice 13 

Where  no  answer  was  interposed 13 

Amount  of  costs  reduced  to  be  credited  on  execution  . . .  i3a 

When  relaxation  not  required 15, 105 

Relaxation  allowed  although  judgment  is  appealed 16 

In  absence  of  parties 1 1 


210  INDEX 

References  are  to  sections 

Review  of  Taxation : 

Review  of  taxation  to  be  made  by  court  on  motion 14 

Only  items  objected  to  may  be  reviewed 14,  18 

Only  papers  submitted  on  taxation  may  be  considered  on 

review 14 

When  question  of  law  is  raised 14 

Laches 14 

Waiver  of  right  to  review 14 

When  objection  is  to  entire  bill,  individual  items  are  not 

to  be  considered 18 

See  "Motion  to  Review  Taxation." 

S 
Same  Papers.    See  "Appeal." 

Sealed  Verdict: 

Effect  on  "  additional "  trial  fee ; 44 

Sections  of  Code  of  Civil  Procedure: 

14,  sub.  3 253,  257 

420 26,  27 

421 i 

461 .: 207,  213 

466 211 

467 211 

547 70 

732 185 

733 185 

737 185 

738 185,  189 

779 77,  251,  252,  253,  254,  257 

870 168 

871 168 

872 168 

879 168,  170 

976 70,  117 


INDEX  211 

References  are  to  sections 

Sections  of  Code  of  Civil  Procedure — Continued 

893 168 

997 92 

1015 199,  228 

1019 199,  200 

1235- ••  24 

1240.  250,  256,  257 

1275 190 

1326 130 

1346 114 

1347-  •  • 114 

1348 114 

1349 114 

1487 ' 256 

1772 252 

1773 252 

1835 201 ,  2o6a 

1836 201,  202,  2o6a 

2143 183 

2268 257 

2348 82 

2432 251 

2681 204 

2743  -  •  -249 

3161,  sub.  6 4 

3188 114 

3189 H4 

3228,  sub.  i ,    139 

3228,  sub.  2 143 

3228,  sub.  3 142 

3228,  sub.  4 2,  69,  148,  149,  157,  187 

3228,  sub.  5  .69,  147,  150,  151,  153,  154,  155,  156,  157,  164 

3229 58,  69,  157,  158,  161 

323° 3 

3232 67,  68,  71,  77 

3233 252 

3234 161,  l62,  164 


212  INDEX 

References  are  to  sections 
Sections  of  Code  of  Civil  Procedure — Continued 

3235 ....   i39 

3236 79,  121 

3237 156 

3239- •  •    -104,  134 

3240 79,  80,  82 

3246 2o6a 

3251.  .  .  .33,  43,  71,  78,  82,  102,  125,  2iga,  228 

3251,  sub.  i 26,  2iga 

3251,  sub.  3.  .2,45,  67,  78,  79,  83,  84,  120,  121,  165,  168,  249 

3251,  sub.  4.  .  91,  114,  119 

3251,  subs.  4  and  5 101,  117,  131 

3252 177 

3253 177 

3254 -.177,  178 

3256 6,  81,  214,  217,  222,  223,  249 

3258 180,  181,  183 

3259 l8o 

3262 4,  250 

3263..  4 

3264 12,  13 

3265 •  .12,  14 

3266 7,11 

3267 .  .236,  243 

3288 24ia,  2410 

3296 '20,  191 

3307 219 

3318.                                                                              .  .236,  244 
3372 82 


Seduction.    See  "Assault." 

Service : 

Of  summons.    See  "Summons." 

Of  paper  on  attorney 234 


INDEX  213 

References  are  to  sections 
Set-Off: 

What  appeal  costs  may  be  set  off in 

See  "Appeal." 

Several  Actions : 

When  tried  together 21,  194 

When  same  document  used  in  each  of  them 233 

See  "Stipulation." 

Several  Appeals.    See  "Appeals." 

Several  Defendants : 

Clerk  must  tax  bill  when  presented 17 

Only  one  bill  taxable  by  plaintiff 22 

Effect  on  expense  of  printing  case  on  appeal 23 1 

Effect  of  dismissal  as  to  one  of  several  defendants  ...  58,  159 

Appeal  on  same  papers 232 

See  "Clerk  to  Tax  Costs,"  "Appeal,"  "Defendant." 

Several  Plaintiffs : 

When  one  defendant  recovers  against 23 

Several  Respondents: 

When  one  bill  only  will  be  allowed 1 18 

Sheriff's  Fees: 

Proper  item  of  disbursements 214. 

Fees  allowed page  146 

Fees  and  poundage,  how  collected page  146 

Sheriff.    See  "Increased  Costs  to  Defendant." 
Slander.    See  "Assault." 

Special  Proceedings: 

Allowance  of  costs  in  discretion  of  court 80 

What  items  allowable 80 

Carries  disbursements 81 

Must  be  a  final  order  in  the  proceedings 81 

When  §  3240,  C.  C.  P.,  applies 82 


214  INDEX 

References  are  to  sections 
Special  Appearance.    See  "Appearance." 

Special  Term  Costs,  Collection  of 252 

Statutory  Costs: 

In  law  action 2 

Court  has  no  power  to  withhold 2 

"Without  costs"  ineffective 2 

Statutory  Provisions.    See  "Section." 

Stay  of  Proceedings : 

Effect  on  term  fee 47 

Stenographer's  Fees: 

When  taxable 223 

Disbursement  for  minutes  when  taxable 224 

Effect  of  offer  of  copy  of  minutes  by  appellant  to  re- 
spondent    224 

Effect  of  refusal  to  accept 224 

When  minutes  ordered  by  court 224 

Stipulation  as  to  payment : 227 

Fees  on  a  reference 228 

Stipulation : 

As  to  costs 20,  42 

As  to  trial  of  several  actions 21 

Several  actions  tried  as  one 21 

Several  appeals  argued  as  one 21 

Deposition  by  stipulation 170 

As  to  witness  fees 238 

See  "Referee's  Fees." 

Stockholder : 

Witness  fees.    See  "Witness." 


INDEX  215 

References  are  to  sections 

Submission: 

Of  papers  same  as  argument 125 

See  "Argument." 

Sum  of  Money.    See  "Recovery,"  "Actions  in  Equity." 

Summation : 

Stenographer's  transcript 229 

Summons : 

Disbursements  for  service  thereof 219 

Additional  costs  for  additional  defendants 2iga 

Effect  of  voluntary  appearance  of  defendant aigb 

Mileage  on  service  of  summons 219 

Supplementary  Proceedings : 

Maintainable  for  collection  of  costs 251 

When  not  maintainable 252 

Surrogate's  Court: 

Allowance  of  disbursements 249 

Surveys.    See  "Expert  Testimony." 

T 

Taxation.    See  "Clerk  to  Tax  Costs." 

Taxation  of  Costs  by  Clerk: 

Upon  application  of  party 4 

Clerk  to  insert  amount  in  judgment 4 

When  taxed  under  wrong  section  of  Code 15 

When  clerk's  taxation  not  disturbed 6 

Taxation  may  be  adjourned  by  clerk 8 

See  "Clerk  to  Tax  Costs." 

Fees  in  Bronx  and  Kings  Counties pages  148,  149 

Taxation  of  Costs  by  Judge : 

Interlocutory  costs .  .t 4 

Costs  in  special  proceedings 4,  80 


216  INDEX 

References  are  to  sections 

Taxation  of  Costs  on  Notice : 

Each  party  appearing  entitled  to  notice 4 

Time  of  notice 4 

When  less  than  5  days 4 

Copy  of  bill  to  accompany  notice 4 

In  City  Court  only  2  days 4 

When  one  day  is  sufficient • 4 

When  presence  of  adverse  party  not  necessary 7 

Taxation  of  Appeal  Costs : 

Order  of  Appellate  Court  must  be  made  the  order  of 

court  below i38a 

Practice  in  City  Court i38a 

Taxation  of  Costs  Previously  Paid  as  Terms : 

See  "Costs  Previously  Paid  as  Terms." 

Term  Fees: 

In  City  Court 45,  49 

In  Supreme  Court 45 

In  Appellate  Division 45 

In  Court  of  Appeals 45 

In  Appellate  Term 53 

Cause  must  be  necessarily  on  the  calendar 46 

When  considered  necessarily  on  calendar 46 

Effect  of  stay  of  proceedings 47 

Effect  of  postponement  of  cause  without  consent 47 

Effect  of  adversary  filing  notice  of  trial 48 

When  demurrer  noticed  on  general  calendar  and  heard  at 

Special  Term 48 

When  no  term  fee  allowed 50,  54 

Effect  of  amendment  of  pleading 51 

Effect  of  adjournment  on  consent 52 

When  taxable  in  appellate  courts 54 

Successful  party  entitled  to  tax  them 53 

Terms.    See  "Costs  Previously  Paid  as  Terms,"  "Default." 


INDEX  217 

References  are  to  sections 

Testimony : 

See  "Witness,"  "Expert  Testimony." 

Time: 

Notice  of  taxation  of  costs 4 

When  less  than  5  days 4 

In  City  Court 4 

Title  to  Property.    See  "Real  Property." 

To  Abide  the  Event.    See  "With  Costs  to  Abide  the  Event." 

Tort  or  Contract: 

When  doubtful  whether  action  is  in  tort  or  contract ....     10 

Transcripts  of  Minutes.    See  "Minutes." 

Triable: 

Meaning  of  term 152 

Trial: 

Meaning  of  term 114 

Period  of  trial 44 

Trial  Lasting  more  than  Two  Days: 

Additional  allowance 43 

What  constitutes  period  of  trial 44 

Effect  of  waiting  to  become  actually  engaged 44 

Adjournment  after  examination  of  jury 44 

Time  given  to  prepare  briefs 44 

Sealed  verdict  on  following  day 44 

Trial  Fee: 

When  allowed 33 

What  is  a  trial 33,  34,  114 

On  dismissal  of  action 34,  56 

On  discontinuance  of  action 35,  61,  62 

Removing  case  from  short  cause  to  general  calendar ....     36 


2i8  INDEX 

References  are  to  sections 

Trial  Fee — Continued 

Mistrial  due  to  withdrawal  of  juror 37 

Disagreement  of  jury 38 

Withdrawal  of  juror 39 

On  taking  an  inquest 40 

Effect  of  cause  being  sent  to  referee 41 

On  cancellation  of  reference 4ib 

Effect  of  stipulation 42 

U 

Undertaking  on  Appeal : 

"  Costs  "  as  used  therein 130 

Premiums  paid  on  undertakings.      See  "Bond,"  "Court 
of  Appeals." 

Unreasonably  Resisting  Claim.     See  "Executors  and  Ad- 
ministrators." 

V 
Verdict: 

On  motion  to  set  verdict  aside 119 

When  set  aside  and  new  trial  ordered 84 

When  set  aside  because  of  misconduct  of  jury 85 

See  also  "Clerk  to  Tax  Costs." 
See  also  "Sealed  Verdict." 

Voluntary  Appearance  by  Defendant: 

When  equivalent  to  personal  service 154 

When  defendant  entitled  to  costs 155 

Effect  as  to  allowance  of  additional  costs 

W 

Waiver  of  Examination.     See  "Depositions  and  Interroga- 
tories." 

Warrant  of  Attachment: 

Poundage,  how  collected page  146 


INDEX  219 

References  are  to  sections 

Withdrawal  of  Juror: 

Effect  on  trial  fee 39 

"With  Costs." 

When  disbursements  not  included 79,  249 

When  "with  costs"  carries  disbursements 80,  81,  249 

When  allowance  "with  costs"  carries  only  one  bill  against 

several  respondents 118 

"With  costs"  to  abide  the  event 135 

With  Costs  to  Abide  the  Event: 

Meaning 135 

When  construed  to  include  all  costs  in  the  action 136 

When  construed  as  costs  of  appellate  court  only 137 

Effect  of  Court  of  Appeals  allowing  or  disallowing  same.  137 

Party  finally  successful  entitled  to  tax  them 138 

Without  Costs.    See  "Actions  at  Law." 

Witness : 

Witness  fee  proper  item  of  disbursement 214 

Fees  for  service  of  subpoenas 220 

Statutory  provisions 236 

Affidavit  of  attendance  of  witness,  etc.,  necessary 237 

Affidavit  must  state  witness  to  be  material 237 

When  fees  cannot  be  taxed 237 

Stipulation  by  parties  as  to  fees 238 

When  not  called  to  testify 239 

Adverse  party 24oa 

Stockholder 24ob 

Officer  of  corporation 24oc 

Party  in  the  action 24ia 

Codefendant 24ib 

Attorney  of  record 24ic 

Allowance  for  expert  testimony 242 

Testimony  taken  at  residence  of  witness 248 

See  "Mileage." 


220  INDEX 

Form  I :                                                                                PAGE 
Bill  of  costs  taxed  by  plaintiff  in  an  action  within  sec.  420, 
Code  of  Civil  Procedure,  on  default  of  defendant  to 
appear  or  answer 156 

Form  II: 

Bill  of  costs  taxed  by  plaintiff  on  confession  of  judgment 

by  defendant 157 

Form  III: 

Bill  of  costs  taxed  by  plaintiff  in  an  action  not  within 
sec.  420,  Code  of  Civil  Procedure,  where  an  inquest 
is  taken  before  a  sheriff's  jury 158 

Form  IV: 

Bill  of  costs  for  plaintiff  on  a  trial  before  a  court  and  jury  1 59 

Form  V: 

Bill  of  costs  to  be  taxed  by  defendant  in  an  action  tried 
before  a  court  and  jury 161 

Form  VI: 

Bill  of  costs  to  be  taxed  by  plaintiff  on  an  inquest  before 

a  court  and  jury 164 

Form  VII: 

Bill  of  costs  to  be  taxed  by  either  side  on  entry  of  an 

interlocutory  judgment 165 

Form  VIII: 

Bill  of  costs  to  be  taxed  by  appellant  on  reversal  of  judg- 
ment by  the  Appellate  Term  or  Appellate  Division  165 

Form  IX: 

Costs  to  be  taxed  by  respondent  on  an  affirmance  of  judg- 
ment either  by  the  Appellate  Term  or  Appellate 
Division.  .  .166 


INDEX  221 

Form  X:                                                                              PAGE 
Bill  of  costs  to  be  taxed  by  defendant  on  dismissal  of 
complaint  granted  on  motion  for  failure  to  prosecute 
the  action 168 

Form  XI: 

Bill  of  costs  to  be  taxed  by  defendant  upon  dismissal  of 
complaint  either  on  the  call  of  the  calendar  or  after 
a  trial  of  the  issues 169 

Form  XII: 

Bill  of  costs  to  be  taxed  by  defendant  on  the  discontin- 
uance of  an  action 170 

Form  XIII: 

Bill  to  be  taxed  by  the  plaintiff  on  the  withdrawal  of  a 
juror  to  permit  defendant  to  amend  his  answer.  ...  171 

Form  XIV: 

Bill  to  be  taxed  by  plaintiff  after  defendant  had  paid 

costs  as  terms  to  permit  him  to  amend 173 

Bill  to  be  taxed  by  defendant  under  same  conditions. ...   173 

Form  XV: 

Bill  to  be  taxed  by  defendant  on  the  withdrawal  of  a  juror 
to  permit  plaintiff  to  amend  his  complaint 173 

Form  XVI: 

Bill  to  be  taxed  by  defendant  after  plaintiff  had  paid 

costs  as  terms  for  leave  to  amend 174 

Bill  to  be  taxed  by  plaintiff  under  same  conditions 174 

Form  XVII: 

Bill  of  costs  to  be  taxed  by  successful  party  upon  a  retrial 
of  an  action  had  pursuant  to  an  order  of  the  court 
granted  upon  setting  aside  a  verdict  rendered  by  a 
jury 175 


222  INDEX 

Form  XVIII:  PAGE 

Bill  of  costs  to  be  taxed  by  the  successful  party  upon  the 
retrial  of  an  action  pursuant  to  an  order  of  reversal 
by  the  appellate  court  ordering  a  new  trial  with 
costs  to  abide  the  event 177 

Form  XIX: 

Bill  of  costs  to  be  taxed  on  the  rendition  of  judgment 
absolute  by  the  Appellate  Division  in  an  action 
brought  in  the  City  Court  which  was  reversed  and 
a  new  trial  ordered  by  Appellate  Term 179 

Form  XX: 

Bill  of  costs  to  be  taxed  by  successful  party  on  entry  of 
final  judgment  upon  an  interlocutory  judgment 
overruling  or  sustaining  a  demurrer  to  a  pleading.  .  182 


\ 


LAW  LIBRARY  * 

UNIVERSITY  OF  CALIFORNIA      » 
LOS  ANGELES 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


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